Holcomb v. Department of Corrections, No. 92-288

CourtCourt of Appeal of Florida (US)
Writing for the CourtALLEN
Citation609 So.2d 751
Parties17 Fla. L. Week. D2816 Larry HOLCOMB, Appellant, v. DEPARTMENT OF CORRECTIONS, Appellee.
Docket NumberNo. 92-288
Decision Date07 December 1992

Page 751

609 So.2d 751
17 Fla. L. Week. D2816
Larry HOLCOMB, Appellant,
v.
DEPARTMENT OF CORRECTIONS, Appellee.
No. 92-288.
District Court of Appeal of Florida,
First District.
Dec. 7, 1992.

Page 752

Larry Holcomb, Pro Se.

Robert A. Butterworth, Atty. Gen., and Susan P. Stephens, Asst. Atty. Gen., Tallahassee, for appellee.

ALLEN, Judge.

The appellant appeals a final order denying his petition for a writ of mandamus. The issue is whether the trial court can order a petitioner to produce evidence in support of factual allegations where the respondent has not alleged any conflicts in the facts. Although a trial judge cannot, we affirm the denial of relief in this case because the petition is legally insufficient on its face.

The appellant, an inmate, filed a petition for a writ of mandamus in the circuit court alleging that on four separate occasions he was charged with disciplinary infractions and was denied permission to call witnesses he had previously requested. He sought an order directing the Department of Corrections (the department) to expunge the disciplinary reports and award gain time lost as a result of the disciplinary reports.

In response to an order to show cause, the department argued that the appellant

Page 753

had not demonstrated a clear legal right to call witnesses and attached the four disciplinary reports. The court issued an order denying mandamus relief on the basis that no evidence indicated that the appellant had asked to call live witnesses at his hearings. However, the court "remanded" the case to allow the appellant thirty days to file additional evidence supporting his claim. Soon thereafter, the department requested the court to clarify its order with regard to the "remand." The court issued an order of clarification which specifically offered the appellant "the opportunity to present evidence, by affidavit or other documentary presentation to establish that he in fact requested that witnesses appear live and give testimony at any of the disciplinary hearings." The order gave the appellant an additional twenty days from the order within which to file the evidence. The appellant did not file any evidence by the deadline, and the court denied the petition for a writ of mandamus, saying that the appellant had defaulted in his obligation to present evidence demonstrating that he had requested witnesses.

The appellant first argues that his verified petition containing allegations that he requested witnesses suffices as proof of same. The appellant cites to cases where courts held that for purposes of surviving a motion for summary judgment, the allegations in a plaintiff's sworn complaint must be taken as true and accorded the same dignity as the moving party's affidavit. See Rinzler v. Carson, 262 So.2d 661 (Fla.1972); Booth v. Board of Public Instruction, 67 So.2d 690 (Fla.1953). In essence the appellant is arguing that his case was in the same procedural posture as a motion for summary judgment in a civil case. In a sense the appellant is correct.

In order for a court to issue a writ of mandamus, a petitioner "must show that he has a clear legal right to the performance of a clear legal duty by a public officer and that he has no other legal remedies available to him." Hatten v. State, 561 So.2d 562, 563 (Fla.1990). When a petitioner files a petition for mandamus, the court has the initial task of assessing the legal sufficiency of the allegations. If the court finds the allegations insufficient, it will deny the petition, see, e.g., Gibson v. Florida Parole & Probation Comm'n, 450 So.2d 553 (Fla. 1st DCA 1984), or dismiss those claims that are factually insufficient, see, e.g., Adams v. Wainwright, 512 So.2d 1077 (Fla. 1st DCA1987). However, if the petition is facially sufficient, the court must issue an alternative writ, i.e., an order directed to the respondent to show cause why the requested relief should not be granted. Conner v. Mid-Florida Growers, Inc., 541 So.2d 1252, 1256 (Fla. 2d DCA1989); Fla.R.Civ.Pro. 1.630(d).

Once a show cause order has issued, it becomes in all respects the complaint and subject to the same rules of pleading as are any other complaints. West Palm Beach v. Knuutila, 183 So.2d 881 (Fla. 4th DCA1966); Fla.R.Civ.Pro. 1.630(e). It is then up to the respondent to admit or deny the factual allegations upon which relief is based, and to present any and all affirmative defenses. All facts alleged in the order to show cause, which generally incorporates by reference the original petition, that are not specifically denied are admitted to be true. Arnold v. State ex rel. Mallison, 147 Fla. 324, 2 So.2d 874 (1941...

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35 practice notes
  • Banks v. Jones, No. 1D15–0330.
    • United States
    • Court of Appeal of Florida (US)
    • July 12, 2016
    ...are other claims challenging disciplinary reports issued in state prisons. See generally 197 So.3d 1156 Holcomb v. Dep't of Corrections, 609 So.2d 751 (Fla. 1st DCA 1992) (holding that circuit court must first evaluate a prisoner's petition to determine sufficiency of allegations, and if in......
  • Mathews v. Crews, Case No. 4:12cv279-RH/CAS
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Florida
    • November 4, 2014
    ...A petition for extraordinary relief must contain specific facts rather than conclusory statements. Holcomb v. Dep't of Corr., 609 So. 2d 751 (Fla. 1st DCA 1992); Piccirillo v. Wainwright, 382 So. 2d 743 (Fla. 1st DCA 1980). Furthermore, in order to provide sufficient grounds for reversal of......
  • Plymel v. Moore, No. 1D99-1250.
    • United States
    • Court of Appeal of Florida (US)
    • October 26, 2000
    ...that he has no other available legal remedies. See Hatten v. State, 561 So.2d 562, 563 (Fla.1990); Holcomb v. Department of Corrections, 609 So.2d 751, 753 (Fla. 1st DCA 1992); Adams v. State, 560 So.2d 321, 322 (Fla. 1st DCA 1990). Mandamus may be used only to enforce a clear and certain r......
  • Smith v. State, Nos. 96-00365
    • United States
    • Court of Appeal of Florida (US)
    • March 12, 1997
    ...is on the respondent to come forth with facts upon which it refused to perform its legal duty. See Holcomb v. Department of Corrections, 609 So.2d 751 (Fla. 1st DCA In the instant cases, the complaints meet the requirements of rule 1.630. Appellant has alleged in his complaints an indisputa......
  • Request a trial to view additional results
35 cases
  • Banks v. Jones, No. 1D15–0330.
    • United States
    • Court of Appeal of Florida (US)
    • July 12, 2016
    ...are other claims challenging disciplinary reports issued in state prisons. See generally 197 So.3d 1156 Holcomb v. Dep't of Corrections, 609 So.2d 751 (Fla. 1st DCA 1992) (holding that circuit court must first evaluate a prisoner's petition to determine sufficiency of allegations, and if in......
  • Mathews v. Crews, Case No. 4:12cv279-RH/CAS
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Florida
    • November 4, 2014
    ...A petition for extraordinary relief must contain specific facts rather than conclusory statements. Holcomb v. Dep't of Corr., 609 So. 2d 751 (Fla. 1st DCA 1992); Piccirillo v. Wainwright, 382 So. 2d 743 (Fla. 1st DCA 1980). Furthermore, in order to provide sufficient grounds for reversal of......
  • Plymel v. Moore, No. 1D99-1250.
    • United States
    • Court of Appeal of Florida (US)
    • October 26, 2000
    ...that he has no other available legal remedies. See Hatten v. State, 561 So.2d 562, 563 (Fla.1990); Holcomb v. Department of Corrections, 609 So.2d 751, 753 (Fla. 1st DCA 1992); Adams v. State, 560 So.2d 321, 322 (Fla. 1st DCA 1990). Mandamus may be used only to enforce a clear and certain r......
  • Smith v. State, Nos. 96-00365
    • United States
    • Court of Appeal of Florida (US)
    • March 12, 1997
    ...is on the respondent to come forth with facts upon which it refused to perform its legal duty. See Holcomb v. Department of Corrections, 609 So.2d 751 (Fla. 1st DCA In the instant cases, the complaints meet the requirements of rule 1.630. Appellant has alleged in his complaints an indisputa......
  • Request a trial to view additional results

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