Collins v. Florida Parole Commission

14 So. 3d 1066, 2009 Fla. App. LEXIS 7533, 2009 WL 1492621

• Court: District Court of Appeal of Florida
• Decided: May 29, 2009
• Docket: 1D08-6037
• Status: Published

Opinion

PER CURIAM.

Petitioner seeks certiorari review of a circuit court order which denied a petition for writ of mandamus which challenged the revocation of his conditional release supervision. We grant the writ.

When petitioner’s conditional release supervision was revoked, neither the Florida Parole Commission nor the FPC hearing examiner made a finding that the violation was willful and substantial as required by Mathis v. Florida Parole Commission, 944 So.2d 1182 (Fla. 1st DCA 2006). Petitioner sought mandamus relief in the circuit court, which remanded the cause to FPC to make that finding. After the hearing examiner determined that the violation was willful and substantial, FPC adopted that finding. Without giving petitioner an opportunity to respond, the circuit court then denied the petition for writ of mandamus. Due process is violated where a cause is remanded to FPC for a determination of whether the violation is willful and substantial and the circuit court fails to allow the inmate an opportunity to be heard before denying relief. See Nichols v. Fla. Parole Comm’n, 4 So.3d 1247 (Fla. 1st DCA 2009); Crosby v. Fla. Parole Comm’n, 975 So.2d 1222 (Fla. 1st DCA 2008).

We note that the record on appeal failed to contain the exhibits that FPC attached to its response to order to show cause and motion for remand filed in the circuit court. Petitioner also complained that he was not provided with copies of FPC’s exhibits. In arguing for relief in this court, a party may not rely on exhibits which were not filed in the lower tribunal.

Accordingly, we grant the writ, quash the order of the circuit court and remand for further proceedings.

PETITION GRANTED.

BARFIELD, WEBSTER, and PADOVANO, JJ., concur.