JAMES EDWARD OSBORNE, PETITIONER,
v.
KENNETH S. TUCKER, SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, RESPONDENT
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James Osborne sought certiorari review of an order dismissing his habeas corpus petition challenging the Department of Corrections' calculation of his release date. The appellate court reversed the dismissal, finding the trial court erred by dismissing the petition on non-merits grounds rather than redesignating it as a mandamus petition and transferring it to the proper venue in Leon County.
The trial court erred in dismissing the petition without reaching the merits. The petition should have been redesignated as a mandamus petition and transferred to the Second Circuit Court in Leon County, which is the proper venue for challenging final agency action by the DOC.
[1] A petition for writ of habeas corpus challenging the calculation of a release date, which does not allege entitlement to immediate release, may be converted to an appeal…
[2] A petition challenging a Department of Corrections' final agency action regarding time served should be redesignated as a petition for mandamus relief.
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Join FLexlaw to unlock all legal intelligence“Because the trial court dismissed Osborne's petition without reaching the merits of his claim, the instant petition is hereby converted to an appeal”
Establishes that a petition dismissed on non-merits grounds may be converted to an appeal for review
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Join FLexlaw to unlock all legal intelligenceOsborne filed a habeas corpus petition in trial court challenging the Department of Corrections' denial of his administrative appeal regarding miscalc…
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James Osborne seeks certiorari review of an order dismissing his petition for writ of habeas corpus as failing to establish any entitlement to immediate release. Osborne’s petition for writ of habeas corpus, as filed with the trial court, sought review of the Department of Corrections’ final agency action denying Osborne’s administrative appeal, in which Osborne alleged that the Department of Corrections had miscalculated Osborne’s release date by failing to properly credit him for time served. In dismissing Osborne’s petition, the trial court wrote:
The Petitioner maintains that the DOC has failed to take into account four years, four months, and twenty-three days of gain time. However, even assuming that the Petitioner’s allegations are true, and the Petitioner was in fact entitled to this credit, the Petitioner’s sentence would still not be complete. Accordingly, the Petitioner has failed to *414establish entitlement to immediate release.
Because the trial court dismissed Osborne’s petition without reaching the merits of his claim, the instant petition is hereby converted to an appeal, and the petition and response are treated as the initial and answer briefs. See Green v. Moore, 777 So.2d 425, 426 (Fla. 1st DCA 2000), (because “the circuit court proceeding [was] concluded on grounds other than the merits, the order may be appealed”).
The Department of Corrections concedes, correctly, that the trial court erred in dismissing Osborne’s petition for writ of habeas corpus, rather than redesignating it as a petition seeking mandamus relief. See Fla. R.App. P. 9.040(c); Ashley v. Moore, 732 So.2d 498, 499 (Fla. 1st DCA 1999). Furthermore, the Department of Corrections correctly concedes that the proper venue for Osborne’s mandamus petition, challenging the DOC’s final agency action, was in the Second Circuit Court in and for Leon County. See, e.g., Reeves v. State, 987 So.2d 779 (Fla. 3d DCA 2008). Thus, after redesignating Osborne’s petition as one seeking mandamus, the trial court should have transferred the petition to the Leon County Circuit Court.
Accordingly, the order dismissing the petition for writ of habeas corpus is reversed, and the matter is remanded to the circuit court for further proceedings consistent with this opinion.
VAN NORTWICK, THOMAS, and ROBERTS, JJ., concur.
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Shelton Ty Prudhomme v. Fla. Dep't OF Corr., 109 So. 3d 276 (Fla. 1st DCA 2013)…) concession of error, we reverse and remand the trial court’s dismissal, on procedural grounds, Appellant’s claim that the Department failed to properly calculate and apply Appellant’s prison credit to his Third Circuit case. See Osborne v. Tucker, 80 So. 3d 413 (Fla. 1st DCA 2012) (reversing and remanding, in light of State’s concession, dismissal of habeas petition for lower court to redesignate petition as a mandamus action and transfer the case to the appropriate court). AFFIRMED IN PART, REVERSED IN…
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Reiblich v. Inch (Fla. 1st DCA 2021)…proper remedy had been sought; provided that it shall not be the responsibility of the court to seek the proper remedy.”). Still, after considering Mr. Reiblich’s argument addressed to the merits of the circuit court’s order, see Osborne v. Tucker, 80 So. 3d 413, 414 (Fla. 1st DCA 2012) (treating certiorari petition as initial brief), we find that he has not demonstrated a preliminary basis for relief. Cf. Fla. R. App. P. 9.100(h) (stating that the court may direct the filing of a response if “the petition…
Authorities Cited
- Green v. Moore, 777 So. 2d 425 (Fla. 1st DCA 2000)
- Weeks v. State, 732 So. 2d 498 (Fla. 1st DCA 1999)
- Reeves v. State, 987 So. 2d 779 (Fla. 3d DCA 2008)