Frankenberry v. Moore

District Court of Appeal of Florida

Frankenberry v. Moore

741 So. 2d 1155, 1999 Fla. App. LEXIS 11536, 1999 WL 641856

CourtDistrict Court of Appeal of Florida

DecidedAugust 25, 1999

DocketNo. 98-3820

StatusPublished

Cited by1 cases

This text of 741 So. 2d 1155 (Frankenberry v. Moore) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Frankenberry v. Moore, 741 So. 2d 1155, 1999 Fla. App. LEXIS 11536, 1999 WL 641856 (Fla. Ct. App. 1999).

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Opinion

PER CURIAM.

Prisoner James R. Frankenberry, Jr. appeals a circuit court order that dismissed his petition for writ of mandamus for failure to serve a copy on the respondent within 120 days. The petition he filed in the circuit court sought review of a disciplinary action taken against him by the Department of Corrections. We treat this appeal as a certiorari review pursuant [1156]*1156to Sheley v. Florida Parole Commission, 720 So.2d 216 (Fla.1998) and Doss v. Florida Dept. of Corrections, 730 So.2d 316 (Fla. 4th DCA1999).

The record reveals that Franken-berry was deprived of his due process rights to notice and the opportunity to be heard prior to dismissal of his petition because the circuit court mailed the notice to the wrong prison, despite the fact that the court file contained Frankenberry’s new address. The delay caused by that error prevented Frankenberry from filing his statement of good cause until after the petition already had been dismissed. We grant the petition and quash the dismissal order for that reason.

In order to clarify the procedure to be followed upon reinstatement of Franken-berry’s petition, we note that the 120 day service requirement of ■ Florida Rule of Civil Procedure 1.070(j) does not apply to the petition, which was filed pursuant to Florida Rule of Appellate Procedure 9.100(c)(4). Frankenberry’s petition should not be dismissed again for that reason.

DELL, KLEIN and GROSS, JJ., concur.

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PER CURIAM.

Prisoner James R. Frankenberry, Jr. appeals a circuit court order that dismissed his petition for writ of mandamus for failure to serve a copy on the respondent within 120 days. The petition he filed in the circuit court sought review of a disciplinary action taken against him by the Department of Corrections. We treat this appeal as a certiorari review pursuant [1156]*1156to Sheley v. Florida Parole Commission, 720 So.2d 216 (Fla.1998) and Doss v. Florida Dept. of Corrections, 730 So.2d 316 (Fla. 4th DCA1999).

The record reveals that Franken-berry was deprived of his due process rights to notice and the opportunity to be heard prior to dismissal of his petition because the circuit court mailed the notice to the wrong prison, despite the fact that the court file contained Frankenberry’s new address. The delay caused by that error prevented Frankenberry from filing his statement of good cause until after the petition already had been dismissed. We grant the petition and quash the dismissal order for that reason.

In order to clarify the procedure to be followed upon reinstatement of Franken-berry’s petition, we note that the 120 day service requirement of ■ Florida Rule of Civil Procedure 1.070(j) does not apply to the petition, which was filed pursuant to Florida Rule of Appellate Procedure 9.100(c)(4). Frankenberry’s petition should not be dismissed again for that reason.

DELL, KLEIN and GROSS, JJ., concur.

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741 So. 2d 1155, 1999 Fla. App. LEXIS 11536, 1999 WL 641856, Counsel Stack Legal Research, https://law.counselstack.com/opinion/frankenberry-v-moore-fladistctapp-1999.

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