Orcutt v. State

• Decision Date: 05 June 2020
• Docket Number: Case No. 2D19-952
• Citation: 310 So.3d 984
• Parties: Giles E. ORCUTT, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

310 So.3d 984

Giles E. ORCUTT, Appellant,

v.STATE of Florida, Appellee.

Case No. 2D19-952

District Court of Appeal of Florida, Second District.

Opinion filed June 5, 2020

Giles E. Orcutt, pro se.

PER CURIAM.

Giles E. Orcutt appeals the denial of his petition for writ of mandamus. We reverse.

In 1977, Mr. Orcutt pleaded guilty to one count of second-degree murder, a first-degree felony punishable by life, and the trial court sentenced him to life in prison. In 2018, Mr. Orcutt filed his petition for writ of mandamus in our court, and we transferred the petition to the Tenth Judicial Circuit in and for Polk County. The circuit court denied the petition.

In his petition, Mr. Orcutt alleged that the Florida Commission on Offender Review (FCOR) determined that he is ineligible for a parole release date under the Mutual Participation Program (the Program) because he is serving a "life felony sentence." See § 947.135(2), Fla. Stat. (2017) ("[N]o offender shall be eligible to participate in this program who was ... convicted of a capital or life felony."). He sought an order from the circuit court vacating his "life felony sentence," imposing a term of years sentence for a first-degree felony, and directing FCOR to hold a hearing to establish his eligibility for a parole release date. Mr. Orcutt argued that a writ of mandamus was required to remedy his situation. See Williams v. Fla. Parole Comm'n, 625 So. 2d 926, 934 (Fla. 1st DCA 1993) (stating that mandamus is available to "order the [Florida Parole Commission] to reconsider its decision and the petitioner's eligibility for parole" (citing Moore v. Fla. Parole & Prob. Comm'n, 289 So. 2d 719, 720 (Fla. 1974) )), receded from on other grounds by Sheley v. Fla. Parole Comm'n, 703 So. 2d 1202, 1206 (Fla. 1st DCA 1997).¹

In denying the petition, the postconviction court treated it as if it were filed as a motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). The court found that Mr. Orcutt's claim was successive because Mr. Orcutt previously filed numerous motions regarding his parole eligibility and his alleged illegal sentence, all of which had been denied and affirmed on appeal.

Generally, a petition for writ of certiorari is the appropriate way to review the denial of a petition for writ of mandamus when the circuit court is acting in its appellate capacity. See Welsch v. State, 823 So. 2d 310, 311 (Fla. 2d DCA 2002) (converting appeal from circuit court's denial of petition for writ of mandamus to a petition for writ of certiorari) (citing Sheley v. Fla. Parole Comm'n, 720 So. 2d 216 (Fla. 1998) ). However, our appellate jurisdiction is invoked when mandamus relief has been denied for reasons other than the merits. See Battle v. Fla. Comm'n on Offender Review, 188 So. 3d 10, 12 (Fla. 1st DCA 2016). We treat this case as a direct appeal because the court below did not address the merits of the...