CLEMENTE HERNANDEZ, APPELLANT,
v.
DEPARTMENT OF CORRECTIONS, APPELLEE
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PER CURIAM.
The defendant, Clemente Hernandez, seeks review of the denial of his petition for writ of habeas corpus. We grant the State’s motion, relinquish jurisdiction to the trial court and remand this case to the lower court for further fact finding as to whether prison overcrowding exceeded the statutory threshold set forth in section 944.598, Florida Statutes (1985), thus entitling Hernandez to emergency gain time. See Sanford v. State, 739 So. 2d 1208 (Fla. 3d DCA 1999); see also Grant v. Singletary, 730 So. 2d 805 (Fla. 2d DCA 1999).
Moreover, pursuant to the State’s confession of error, we direct the trial court to vacate its November 18, 1999 order, dismissing Hernandez’s petition for writ of mandamus, reinstate the action and order the trial court to issue an order to show cause to the Department of Corrections so that a factual determination regarding the applicability of the prison overcrowding provisional credits to this defendant may be determined.
Motion granted, jurisdiction relinquished and case remanded with directions.
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D.N. v. State, 855 So. 2d 258 (Fla. 4th DCA 2003)…9 (Fla.1980). “The common thread running through those cases in which a palpable abuse of discretion has been found is that defense counsel must be afforded an adequate opportunity to investigate and prepare any applicable defense.” Weible v. State, 761 So. 2d 469, 472 (Fla. 4th DCA 2000) (quoting Smith v. State, 525 So. 2d 477, 479 (Fla. 1st DCA 1988)). In McKay v. State, 504 So. 2d 1280 (Fla. 1st DCA 1986), the First District set out seven factors to consider in determining whether denial of a continuance…
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Trocola v. State, 867 So. 2d 1229 (Fla. 5th DCA 2004)…discretion in the denial of a continuance seems to be that defense counsel must be afforded a reasonable opportunity to investigate and prepare any applicable defenses. D.N. v. State, 855 So. 2d 258, 260 (Fla. 4th DCA 2003) (citing Wei-ble v. State, 761 So. 2d 469, 472 (Fla. 4th DCA 2000)). “This right, however, is not absolute. At some point, the right bends before countervailing interests involving the effective administration of the courts.” McKay, 504 So. 2d at 1282. In McKay, the First District Court of…
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Peevey v. State, 820 So. 2d 422 (Fla. 4th DCA 2002)…h DCA 2000) (citations omitted). The trial court’s denial of a continuance is within the trial court’s discretion and “should not be reversed by an appellate court unless there has been a palpable abuse of this judicial discretion.” Weible v. State, 761 So. 2d 469, 472 (Fla. 4th DCA 2000). We have reversed convictions involving morning of trial amendments where the new crime charged a different state of [*424] mind, thus substantively altering the elements of the .crime charged. See Hahn v. State, 626 So. 2d…
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- Grant v. Singletary, 730 So. 2d 805 (Fla. 2d DCA 1999)
- Sanford v. State, 739 So. 2d 1208 (Fla. 3d DCA 1999)