Osterback v. Singletary

679 So. 2d 43, 1996 WL 476984

Opinion

679 So.2d 43 (1996)

Mark OSTERBACK, Appellant,
v.
Harry K. SINGLETARY, Jr., Secretary, Florida Department of Corrections, Appellee.

No. 96-324.

District Court of Appeal of Florida, First District.

August 23, 1996.

Mark Osterback, pro se, appellant.

Robert A. Butterworth, Attorney General, and Donna La Plante, Assistant Attorney General, Tallahassee, for appellee.

PER CURIAM.

Mark Osterback appeals an order of the circuit court which denied his petition for writ of mandamus. That petition challenged a disciplinary proceeding where he was charged with possession of a weapon. After a hearing, he was found guilty and penalized by disciplinary confinement and forfeiture of gain-time.

We find that the mandamus petition showed entitlement to relief on two issues. Appellant's defense at the disciplinary hearing was that the object in question was not a weapon. The team improperly denied his request for production of the object without giving valid reasons for doing so. Young v. Lynch, 846 F.2d 960 (4th Cir.1988); Young v. Kann, 926 F.2d 1396 (3d Cir.1991). We also find that appellant was excluded from the hearing during the taking of some of the evidence contrary to section 944.28(2)(c), Florida Statutes (1995) and Florida Administrative Code Rule 33-22.006(1)(b).

We accordingly reverse the decision of the trial court and remand with directions to grant the petition for writ of mandamus. The precise remedy to which appellant is entitled shall be determined by the trial court upon remand.

MINER, MICKLE and LAWRENCE, JJ., concur.