Sheppard v. Crosby

891 So. 2d 1156, 2005 Fla. App. LEXIS 573, 2005 WL 156770

• Court: District Court of Appeal of Florida
• Decided: January 26, 2005
• Docket: No. 4D04-3241
• Status: Published

Opinion

PER CURIAM.

Timothy Sheppard, petitions this court for a writ of certiorari seeking review of a circuit court order denying his petition for writ of mandamus. Sheley v. Florida Parole Com’n, 720 So.2d 216 (Fla.1998).

The circuit court issued an order directing the Florida Department of Corrections to file a response to the mandamus petition and allowing Sheppard 30 days to reply. However, the circuit court denied the petition shortly after receiving the Department’s response without allowing Sheppard time to reply. Sheppard timely filed his reply, which was not considered by the circuit court.

Petitioner was entitled to file a reply and have it considered by the court. See Johnson v. Florida Parole Com’n, 873 So.2d 611 (Fla. 1st DCA 2004) (remanding because the circuit court entered a final order before the expiration of the time for filing a reply); Haralson v. State, 844 So.2d 817 (Fla. 5th DCA 2003) (citing rule 9.100(k) and recognizing the circuit court should have given petitioner an opportunity to reply to the Department’s response before denying the habeas petition); Salow v. State, 766 So.2d 1222 (Fla. 5th DCA 2000) (concluding where the circuit court’s show cause order expressly authorized the petitioner to file a reply, denying the habe-as petition without waiting for a reply undermines confidence in the judicial system).

Accordingly, the order denying the petition for writ of mandamus is quashed and the case is remanded for the circuit court to consider petitioner’s reply.

GUNTHER and TAYLOR, JJ., concur. FARMER, C.J., dissents without opinion.