NEIL E. WILKINSON, PETITIONER,
v.
JAMES R. MCDONOUGH, SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, RESPONDENT
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Petitioner Neil Wilkinson, an inmate, sought a writ of mandamus challenging a Department of Corrections disciplinary action. The trial court denied the mandamus petition on the merits without first ruling on Wilkinson's pending motion for a continuance. The appellate court held that procedural rules require the trial court to rule on the continuance motion before addressing the merits.
The trial court erred by ruling on the merits of the mandamus petition without first ruling on the pending motion for continuance. Although petitioner had no right to appointed counsel in the trial court proceeding, the procedural requirements mandated that the motion for continuance be resolved before addressing the petition's merits.
[1] A petition for a writ of mandamus seeking review of quasi-judicial action by a lower tribunal is governed by the Florida Rules of Appellate Procedure.
[2] A motion for a continuance tolls the time schedule of a proceeding until the motion is disposed of by the court.
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Join FLexlaw to unlock all legal intelligence“the trial court should not have ruled on the merits of the petition without first ruling on the motion requesting a continuance of the time within which petitioner must reply”
Establishes the core holding that procedural requirements mandate ruling on pending motions before addressing the merits.
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Join FLexlaw to unlock all legal intelligenceWilkinson, an inmate, filed a petition for a writ of mandamus against the Secretary of the Florida Department of Corrections regarding disciplinary ac…
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PER CURIAM.
This is a petition for a writ of certiorari seeking review of an order denying petitioner’s request for a writ of mandamus directed to the Secretary of the Department of Corrections, arising out of action taken by the Department on a disciplinary report filed against petitioner, an inmate. Because the petition for a writ of mandamus filed in the trial court sought review of quasi-judicial action by a lower tribunal (i.e., the Department), the Florida Rules of Appellate Procedure applied to the proceeding in the trial court. See Fla. R.App. P. 9.030(c)(3) (providing that circuit courts may issue “all writs necessary to the complete exercise of the courts’ jurisdiction,” including “writs of mandamus”), 9.100(a) (providing that the rule applies to proceedings invoking a court’s jurisdiction pursuant to rule 9.080(c)(3)).
Here, the trial court afforded petitioner 20 days within which to reply to the Department’s response to the petition for a writ of mandamus. Before expiration of the 20-day period, petitioner filed a motion requesting appointment of counsel and a continuance of the time within which he must reply. Without ruling on that motion, the trial court denied the petition for a writ of mandamus on the merits.
Petitioner had no right to appointment of counsel in the trial court. See generally Wolff v. McDonnell, 418 U.S. 539, 570, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) (there is no right to retained or appointed counsel in prison disciplinary proceedings).
However, the trial court should not have ruled on the merits of the petition without first ruling on the motion requesting a continuance of the time within which petitioner must reply. See Fla. R.App. P. 9.300(b) (providing that, “[except as prescribed by subdivision (d) of this rule, service of a motion shall toll the time schedule of any proceeding in the court until disposition of the motion”); Forbes v. Crosby, 866 So. 2d 198 (Fla. 1st DCA 2004) (quashing denial of a petition for a writ of mandamus entered without affording petitioner time to reply to the Department’s response).
Accordingly, we grant the petition for a writ of certiorari; quash the trial court’s order; and remand to the trial court for further proceedings.
PETITION FOR WRIT OF CERTIO-RARI GRANTED.
WEBSTER, LEWIS, and THOMAS, JJ., concur.
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Autley Mobley v. McNEIL, 989 So. 2d 1215 (Fla. 1st DCA 2008)…ied the motion and this appeal followed. Because the mandamus action initiated by the appellant invoked the circuit court’s appellate jurisdiction, the proceeding was governed by the Florida Rules of Appellate Procedure. See Wilkinson v. McDonough, 960 So. 2d 911 (Fla. 1st DCA 2007). For this reason, Florida Rule of Civil Procedure 1.540(b) was unavailable to the appellant as a vehicle to challenge the interlocutory lien order. Hampton v. McDonough, 967 So. 2d 317 (Fla. 1st DCA 2007). The relief sought by t…
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Hampton v. McDONOUGH, 967 So. 2d 317 (Fla. 1st DCA 2007)…h the trial court denied. Because the trial court proceeding-sought review of quasi-judicial action by a lower tribunal (i.e., the Department of Corrections), it was governed by the Florida Rules of Appellate Procedure. See Wilkinson v. McDonough, 960 So. 2d 911 (Fla. 1st DCA 2007). Accordingly, Florida Rule of Civil Procedure 1.540(b) was unavailable to appellant. To the extent appellant wished to have the trial court reconsider its order imposing a lien on his inmate trust account, his recourse was to fil…
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Gaither v. McDONOUGH, 968 So. 2d 57 (Fla. 1st DCA 2007)…7 (Fla. 1st DCA 2007). Because the circuit court proceeding sought review of quasi-judicial action by a lower tribunal (i.e., the Department of Corrections), it was governed by the Florida Rules’ of Appellate Procedure. See Wilkinson v. McDonough, 960 So. 2d 911 (Fla. 1st DCA 2007). Appellant’s recourse was to file a motion for rehearing or clarification pursuant to Florida Rule of Appellate Procedure 9.330. Treating Appellant’s petition’as having been filed according to that rule, it was untimely. Conseque…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Wolff v. McDONNELL, 418 U.S. 539 (U.S. 1974)
- Raia v. Raia, 866 So. 2d 198 (Fla. 1st DCA 2004)