JERRY BUTLER, APPELLANT,
v.
CITY OF MELBOURNE POLICE DEPARTMENT, APPELLEE
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Butler sought a writ of mandamus to compel return of $1,037 seized during his arrest, claiming denial of due process when a preliminary probable cause hearing in a forfeiture action was held in his absence. The court affirmed the denial of mandamus, holding that Butler had no clear legal right to relief because a final judgment of forfeiture had already been entered and become final.
The court held that Butler's petition for mandamus should be denied because he could not establish a clear legal right to the return of his property, as a final judgment of forfeiture had already been entered by the trial court. Mandamus may only enforce rights clearly established in law, not be used to establish new rights or challenge final judgments.
[1] A writ of mandamus is a remedy to enforce an established legal right by compelling an official to perform an indisputable ministerial duty required by law.
[2] To obtain a writ of mandamus, a petitioner must demonstrate a clear legal right to the requested action, an indisputable legal duty to perform the action, and the absence…
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Join FLexlaw to unlock all legal intelligence“Mandamus is a common law remedy used to enforce an "established legal right by compelling a person in an official capacity to perform an indisputable ministerial duty required by law."”
Defines the proper scope and purpose of the mandamus remedy
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Join FLexlaw to unlock all legal intelligenceButler was arrested on January 27, 1997, and $1,037 in currency was seized under the Florida Contraband Forfeiture Act. He requested a preliminary pro…
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GRIFFIN, J.
This is the pro se appeal of an order denying a prisoner’s petition for writ of mandamus.
On September 24, 1998, Jerry Butler [“Butler”] filed a petition for writ of mandamus against the City of Melbourne Police Department. The petition alleged that when Butler was arrested on January 27, 1997, he was carrying $1,037 in U.S. currency which was seized by the Melbourne Police Department pursuant to the provisions of the “Florida Contraband Forfeiture Act”;1 that Butler requested the preliminary “probable cause” hearing under section 932.703(2)(a), Florida Statutes; that Butler received notice on February 19, 1997 that a preliminary probable cause hearing would be held the following day; that Butler was never transported from the Brevard County Jail, where he was being held without bail, to the preliminary “probable cause” hearing on February 20, 1997; and that the preliminary hearing was held in Butler’s absence. Butler further alleged that he was later served with a motion for default and motion for entry of a final judgment of forfeiture, and that he received a notice of entry of a default on July 3, 1997 and notice of entry of a final order of forfeiture on July 14, 1997. Butler’s petition for writ of mandamus sought an order compelling the City of Melbourne Police Department to return his property because of the failure to afford him “due process” in forfeiting his property. The petition was denied and Butler now appeals.
Mandamus is a common law remedy used to enforce an “established legal right by compelling a person in an official capacity to perform an indisputable ministerial duty required by law.” Puckett v. Gentry, 577 So. 2d 965, 967 (Fla. 5th DCA 1991). A party petitioning for a writ of mandamus must establish a clear legal right to 'performance of the act requested, an indisputable legal duty, and no adequate remedy at law. See Turner v. Singletary, 623 So. 2d 537 (Fla. 1st DCA 1993). In this case, Butler is unable to establish a clear legal right to the return of his property. He acknowledges in his petition that a final judgment of forfeiture has been entered by the trial court. The judgment perfected title to Butler’s property in the City of Melbourne Police Department. See § 932.704(8), Fla. Stat. (1995). Butler’s later appeal of the order was untimely, see Butler v. City of Melbourne, Case No. 97-2276, which means that the order became final thirty days after it was issued.
Butler has attempted to use mandamus to litigate the issue of whether he received due process during the course of the forfeiture proceedings and/or as a means of setting aside the final judgment of forfeiture, based on an alleged denial of due process during the course of those proceedings. However, mandamus may not be used to establish rights. Florida League of Cities v. Smith, 607 So. 2d 397 (Fla.1992). It may be used only to enforce a right clearly and certainly established in the law. Id.
AFFIRMED.
SHARP, W., and PLEUS, JJ., concur. . See §§ 932.701-932.707, Fla. Stat. (1995).
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Austin v. Crosby, 866 So. 2d 742 (Fla. 5th DCA 2004)…stin must demonstrate a clear legal right to have the DOC permit her to celebrate the described rituals, an indisputable legal duty on the part of the DOC to do so, and the absence of an adequate remedy. See Butler v. City of Melbourne Police Dep’t, 812 So. 2d 547, 548 (Fla. 5th DCA), review denied, 835 So. 2d 265 (Fla.2002); Hall v. Key, 476 So. 2d 787, 788 (Fla. 1st DCA 1985); State, Dep’t of Health & Rehabilitative Servs. v. Hartsfield, 399 So. 2d 1019, 1020 (Fla. 1st DCA 1981). That is to say, as the purp…
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City OF Tarpon Springs v. Planes, 30 So. 3d 693 (Fla. 2d DCA 2010)…5 (Fla. 2d DCA 1997); Plymel v. Moore, 770 So. 2d 242 (Fla. 1st DCA 2000). Mandamus may only be employed to enforce a right by compelling performance of a duty, but not to litigate an entitlement to a right. Butler v. City of Melbourne Police Dep't, 812 So. 2d 547, 548 (Fla. 5th DCA 2002).... [W]e agree with the City that Johnson should not have sought relief via mandamus. See Fla. League of Cities v. Smith, 607 So. 2d 397 (Fla.1992). In Johnson, the petitioner attempted to use mandamus to determine whether…
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Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Fla. League OF Cities v. Smith, 607 So. 2d 397 (Fla. 1992)
- Puckett v. Gentry, 577 So. 2d 965 (Fla. 5th DCA 1991)
- Sherrill Turner v. Singletary, 623 So. 2d 537 (Fla. 1st DCA 1993)