TIMOTHY LEVON SHEPPARD, PETITIONER,
v.
JAMES V. CROSBY, JR., SECRETARY OF DEPARTMENT OF CORRECTIONS, RESPONDENT
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The circuit court erred by denying a mandamus petition without considering the petitioner's timely filed reply.
The petitioner filed a petition for writ of mandamus. The circuit court ordered a response and allowed the petitioner time to reply, but denied the pe…
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PER CURIAM.
Timothy Sheppard, petitions this court for a writ of certiorari seeking review of a circuit court order denying his petition for writ of mandamus. Sheley v. Florida Parole Com’n, 720 So. 2d 216 (Fla.1998).
The circuit court issued an order directing the Florida Department of Corrections to file a response to the mandamus petition and allowing Sheppard 30 days to reply. However, the circuit court denied the petition shortly after receiving the Department’s response without allowing Sheppard time to reply. Sheppard timely filed his reply, which was not considered by the circuit court.
Petitioner was entitled to file a reply and have it considered by the court. See Johnson v. Florida Parole Com’n, 873 So. 2d 611 (Fla. 1st DCA 2004) (remanding because the circuit court entered a final order before the expiration of the time for filing a reply); 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, the order denying the petition for writ of mandamus is quashed and the case is remanded for the circuit court to consider petitioner’s reply.
GUNTHER and TAYLOR, JJ., concur. FARMER, C.J., dissents without opinion.
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Amos Ragan v. McDONOUGH, 958 So. 2d 1148 (Fla. 4th DCA 2007)…ralson 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 reply. See Sheppard v. Crosby, 891 So. 2d 1156 (Fla. 4th DCA 2005) (involving mandamus proceeding). The Commission concedes that the circuit court should have given appellant an opportunity to file a reply before ruling on the petition. The purpose of a reply is to avoid an affirmative defense.…
Authorities Cited
- Sheley v. Fla. Parole Comm'n, 720 So. 2d 216 (Fla. 1998)
- Salow v. State, 766 So. 2d 1222 (Fla. 5th DCA 2000)
- Johnson v. Fla. Parole Comm'n, 873 So. 2d 611 (Fla. 1st DCA 2004)
- Highlands Carpentry Serv., Inc. v. Connone, 873 So. 2d 611 (Fla. 2d DCA 2004)
- Haralson v. State, 844 So. 2d 817 (Fla. 5th DCA 2003)