Roth v. Crosby

884 So. 2d 407, 2004 WL 2112644

• Court: District Court of Appeal of Florida
• Decided: September 24, 2004
• Docket: 2D03-1453
• Status: Published

Opinion

884 So.2d 407 (2004)

Joseph Henry ROTH, Appellant,
v.
James CROSBY, Secretary, Department of Corrections, Appellee.

No. 2D03-1453.

District Court of Appeal of Florida, Second District.

September 24, 2004.

Joseph Henry Roth, pro se.

No appearance for Appellee.

WALLACE, Judge.

Joseph Henry Roth is a prison inmate in the Polk Correctional Institution. In February 2000, the Florida Parole and Probation Commission (the Commission) established his presumptive parole release date as June 2, 2011, a date significantly later than the date recommended by the hearing examiner.

Roth sought review of the Commission's order by filing a petition for a writ of habeas corpus in the Circuit Court for Polk County.^[1] However, the appropriate vehicle for challenging a presumptive parole release date is a petition for a writ of mandamus directed against the Commission. Griffith v. Fla. Parole & Prob. Comm'n, 485 So.2d 818, 820 (Fla.1986) (contrasting mandamus with habeas corpus, which is the appropriate vehicle for challenging an effective parole release date). The mandamus petition must be filed in the Circuit Court for Leon County, where the Commission is headquartered, unless the home venue privilege is waived. Lewis v. Fla. Parole Comm'n, 697 So.2d 965, 965 (Fla. 1st DCA 1997). The circuit court correctly denied Roth's petition without prejudice for Roth to file a petition for a writ of mandamus directed against the Commission. Therefore, we affirm.^[2]

Affirmed.

NORTHCUTT and VILLANTI, JJ., Concur.

NOTES

[1] Our record is unclear as to whether Roth exhausted his administrative remedies pursuant to section 947.173, Florida Statutes (1999), which he was required to do before seeking review of the Commission's action in the circuit court. See Riddell v. Fla. Dep't of Corrections, 538 So.2d 132, 133 (Fla. 1st DCA 1989).

[2] We do not treat Roth's timely filed notice of appeal as a petition for writ of certiorari because appeal is the appropriate avenue for review of the circuit court's order in this case. Compare Green v. Moore, 777 So.2d 425, 426 (Fla. 1st DCA 2000) (holding that when a prisoner seeks review of an administrative action related to his incarceration and the circuit court decides the prisoner's petition on grounds other than the merits, an appeal is the proper avenue of review by the district court), with Sheley v. Fla. Parole Comm'n, 720 So.2d 216, 217-18 (Fla.1998) (holding that certiorari is the proper method to review a circuit court's order deciding the merits of a prisoner's petition seeking review of an action by the Commission).