Diehl v. Moore, 1D99-749.
| Decision Date | 15 September 2000 |
| Docket Number | No. 1D99-749.,1D99-749. |
| Citation | 767 So.2d 615 |
| Parties | Joseph John DIEHL, Appellant, v. Michael W. MOORE, Secretary, Florida Department of Corrections, Appellee. |
| Court | Florida District Court of Appeals |
James W. Cook, Tallahassee, for Appellant.
Susan Schwartz, Assistant General Counsel, Department of Corrections, Tallahassee, for Appellee.
ON MOTION FOR CORRECTION
We grant appellee's motion for correction, withdraw our opinion filed August 9, 2000, and issue this corrected opinion in its stead.
Joseph Diehl appeals an order denying his petition for writ of mandamus, wherein he requested the lower court to order appellee, the Department of Corrections, pursuant to Lynce v. Mathis, 519 U.S. 433, 117 S.Ct. 891, 137 L.Ed.2d 63 (1997), to restore administrative gaintime and provisional credits that had been canceled under section 944.277, Florida Statutes (Supp.1992), Florida Attorney General Opinion 92-96 (1992), and section 944.278, Florida Statutes (1993). Diehl claims the trial court erred in denying his petition based upon department affidavits without conducting an evidentiary hearing to determine whether the prison system had reached 99 percent capacity at the time Diehl was awarded the gaintime and credits. We affirm for a different reason, because appellant failed to allege legally sufficient grounds for relief.
Diehl committed the offenses for which he was incarcerated between October 30, 1986, and December 29, 1986. During that time, the Florida Emergency Gaintime Law was in effect, which was triggered once the prison population exceeded 99 percent of lawful capacity. Under an ex post facto analysis, Diehl would thus be entitled to reinstatement of his gaintime only if lawful capacity had exceeded 99 percent when he received his awards. See Meola v. Department of Corrections, 732 So.2d 1029 (Fla.1998)
. He had apparently been awarded administrative gaintime and provisional credits between February 1, 1987, and January 31, 1991, pursuant to statutes that were triggered at 97½ and 98 percent. Diehl claims on appeal that the trial court erred in relying on department affidavits in which personnel averred that 99 percent of capacity was never achieved.
Diehl may have been entitled to an evidentiary hearing, had his petition been legally sufficient. If a petitioner seeking a writ of mandamus makes a prima facie showing of a clear legal right to performance of a clear legal duty and raises disputed factual issues in response to an order to show cause, "a trial to resolve such disputes is...
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State v. Woodson
...a prima facie claim to which the State must respond and disprove by clear and convincing proof. See, e.g. , Diehl v. Moore , 767 So. 2d 615, 616–17 (Fla. 1st DCA 2000) (holding that a prima facie showing is not made by "conclusory allegation"); Drake v. Scharlau , 353 So. 2d 961, 965 (Fla. ......
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