BARRY K. SALOW, PETITIONER,
v.
STATE OF FLORIDA, ET AL., RESPONDENTS
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A Florida appellate court granted a writ of certiorari to a petitioner seeking habeas corpus relief for gain time credits, finding that the trial court improperly denied the petition before the petitioner had an opportunity to file his authorized reply brief.
While a defendant does not have an absolute right to require consideration of a reply before the court rules, where the court expressly authorizes a reply but rules without waiting for the party to file it, the court should read and consider the authorized reply. The trial court's order was improper because it represented that the reply was reviewed when it had not yet been filed.
[1] A trial court should consider an authorized reply brief before ruling on a petition, even if the reply is filed after the ruling but before the expiration of the authoriz…
[2] A trial court's premature ruling on a petition, after expressly authorizing a reply but before the expiration of the time to file that reply, can undermine confidence in…
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Join FLexlaw to unlock all legal intelligence“where the court expressly authorizes a reply but, without explanation, rules without waiting for the party to file the reply, confidence in our system is undermined”
Establishes the core principle that procedural fairness requires the court to wait for an authorized reply before ruling
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Join FLexlaw to unlock all legal intelligenceSalow filed a habeas corpus petition seeking gain time. The trial court ordered the Department of Corrections to respond within twenty days and gave S…
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GRIFFIN, J.
Petitioner, Barry K. Salow [“Salow”], filed a petition for writ of habeas corpus in the lower court seeking an award of gain time. The trial court ordered the Department of Corrections [“DOC”] to file an answer within twenty days and allowed Salow twenty days to respond to the DOC’s response “before this court will enter its ruling,” citing Bard v. Wolson, 687 So. 2d 254 (Fla. 1st DCA 1996). After an extension, DOC filed its response on December 13, 1999. Four days later, on December 17, 1999, the trial court entered an order denying Salow’s petition. In the denial order, the trial court noted that Salow was given an opportunity to file a reply and recited that the court had considered the petition, response and reply, “if filed”. On December 21, 1999, four days after the denial order was rendered and eight days after the DOC’s response was filed, Salow filed a reply to the response.
In addition to attacking the merits of the denial in his petition for writ of certiorari, Salow asserts that the trial court departed from the essential requirements of the law in entering the denial order before the expiration of his time to reply. We do not perceive that a defendant has an absolute right to require consideration of the reply before the court rules. Nevertheless, where the court expressly authorizes a reply but, without explanation, rules without waiting for the party to file the reply, confidence in our system is undermined. Even worse, the order recited that if a reply was filed, it was reviewed. It would seem that if it was reviewed, its filing would be self-evident. Under the circumstances, we conclude the court should read and consider the authorized reply.
WRIT GRANTED.
PETERSON and SAWAYA, JJ., concur.
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Sheppard v. Crosby, 891 So. 2d 1156 (Fla. 4th DCA 2005)…ly); Haralson v. State, 844 So. 2d 817 (Fla. 5th DCA 2003) (citing rule 9.100(k) and recognizing the circuit court should have given petitioner an opportunity to reply to the Department’s response before denying the habeas petition); Salow v. State, 766 So. 2d 1222 (Fla. 5th DCA 2000) (concluding where the circuit court’s show cause order expressly authorized the petitioner to file a reply, denying the habe-as petition without waiting for a reply undermines confidence in the judicial system). Accordingly, th…
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Prater v. Crosby, 917 So. 2d 1037 (Fla. 1st DCA 2006)…urther proceedings in which petitioner is provided an opportunity to reply to the response filed below. The circuit court erred in denying the complaint prior to expiration of the time afforded appellant to reply to the response. See Salow v. State, 766 So. 2d 1222 (Fla. 5th DCA 2000)(stating that the trial court should read and consider a court-authorized reply before denying a petition). ERVIN, BENTON and LEWIS, JJ., concur.…
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Amos Ragan v. McDONOUGH, 958 So. 2d 1148 (Fla. 4th DCA 2007)…aring and attached his proposed reply to the motion. The circuit court denied the motion for rehearing. Florida Rule of Appellate Procedure 9.100(k) indicates that a petitioner in a habeas corpus proceeding “may serve a reply.” Both Salow v. State, 766 So. 2d 1222 (Fla. 5th DCA 2000), and Haralson v. State, 844 So. 2d 817 (Fla. 5th DCA 2003), required circuit courts to reconsider deni [*1149] als of habeas corpus petitions because the courts rendered decisions without giving petitioners a chance to file a rep…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Bard v. Wolson, 687 So. 2d 254 (Fla. 1st DCA 1996)