MICHAEL W. MOORE, SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, APPELLANT,
v.
JOHN TOLBERT, APPELLEE
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The court reversed a default grant of habeas corpus relief because the Department of Corrections timely filed a motion for extension of time and submitted its response before the default was entered, making the default finding erroneous.
A habeas corpus petition cannot be granted by default when the respondent timely filed a motion for extension of time and submitted its response before the default was entered.
[1] A habeas corpus petition cannot be granted by default when the respondent timely files a motion for extension of time and submits its response before the default is enter…
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Join FLexlaw to unlock all legal intelligenceJohn Tolbert filed a habeas corpus petition against Michael W. Moore, Secretary of the Department of Corrections. The circuit court entered a default …
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PER CURIAM.
Michael W. Moore, as Secretary of the Department of Corrections, appeals an order having the effect of granting John Tolbert’s petition for writ of habeas corpus by default. Because appellant timely served a motion for extension of time to respond below and neither that motion nor a subsequent one were ever disposed of by the circuit court, and because appellant’s response was filed before the default was entered, the finding that appellant was in default was erroneous. See Fla. R.App. P. 9.010, 9.030(c)(3), and 9.300(b); see also Pinnacle Corp. of Central Florida, Inc. v. R.L. Jernigan Sandblasting & Painting, Inc., 718 So. 2d 1265 (Fla. 2d DCA 1998). In addition, even assuming the granting of habeas corpus relief by default may be appropriate in egregious and extraordinary circumstances, such circumstances were not present here.
Accordingly, the order granting Tol-bert’s petition for writ of habeas corpus is reversed, and the matter is remanded for further proceedings. While we are not addressing the merits of the issue raised in Tolbert’s petition, the attention of the circuit court and the parties in that regard is directed to this court’s recent decision in Duer v. Moore, 765 So. 2d 743 (Fla. 1st DCA 2000). Since Duer was decided during the pendency of this appeal, we suggest that it might be appropriate for the circuit court to call for supplemental briefing concerning its applicability to this case.
REVERSED and REMANDED for further proceedings.
JOANOS, MINER and ALLEN, JJ., concur.
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Citator
Cited By
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Fla. Dep't OF Corr. v. Davis, 789 So. 2d 1220 (Fla. 1st DCA 2001)…the department, was a departure from the essential requirements of law. The motion for extension of time in which to respond was timely and stated good grounds. The circuit court petition was improperly granted on a default basis. Moore v. Tolbert, 763 So. 2d 1268 (Fla. 1st DCA 2000). Moreover, the department has made a preliminary showing to this court of the correctness of its contentions that Davis’s claim is procedurally barred and without merit. Cunningham v. State, 742 So. 2d 356 (Fla. 5th DCA 1999).…
Authorities Cited
- Duer v. Moore, 765 So. 2d 743 (Fla. 1st DCA 2000)
- Pinnacle Corp. OF Cent. Fla., Inc. v. R.L. Jernigan Sandblasting & Painting, Inc., 718 So. 2d 1265 (Fla. 2d DCA 1998)