Searcy v. Singletary, 91-02232
| Decision Date | 13 December 1991 |
| Docket Number | No. 91-02232,91-02232 |
| Citation | 590 So.2d 1034 |
| Parties | Edgar SEARCY, Appellant, v. Harry K. SINGLETARY, Jr., Secretary, Department of Corrections, Appellee. 590 So.2d 1034, 16 Fla. L. Week. D3070 |
| Court | Florida District Court of Appeals |
Edgar Searcy, pro se.
Susan A. Maher, Florida Dept. of Corrections, Tallahassee, for appellee.
Edgar Searcy appeals the denial of his petition for writ of mandamus and/or habeas corpus. 1 We reverse.
Searcy is serving a sentence for sexual activity with a child and lewd assault upon a child under age 16. 2 His petition alleges that the Department of Corrections, relying upon section 944.277(1), Florida Statutes (1990 Supp.), refuses to award him "provisional credits," notwithstanding the fact none of the exceptions contained within that statute properly apply to him.
The circuit court's order indicates that Searcy is excluded from eligibility for provisional credits by virtue of subsection 944.277(1)(c) of the statute, which the court found bars all persons "convicted or ... previously convicted of committing ... a lewd or indecent assault or act." While this language clearly would exclude Searcy from consideration, the language is taken from the statute as it existed prior to 1990. In 1990 the legislature amended subsection (c) to exclude persons:
[C]onvicted ... or previously convicted of committing, or attempting to commit sexual battery, incest, or any of the following lewd or indecent assaults or acts: masturbating in public; exposing the sexual organs in a perverted manner; or nonconsensual handling or fondling of the sexual organs of another person ...
Ch. 90-186, Laws of Fla. It would appear that a onetime blanket proscription against awarding provisional credits to persons convicted of lewd assault now has been narrowed to some extent by this rewording. 3
We further find that the legislature intended to grant retroactive relief to at least some inmates previously excluded from consideration under section 944.277. Although section 4 of Ch. 90-186 provides that the amended statute shall apply "to offenses committed on or after October 1, 1990," 4 section 3 of the same enactment provides that "[a] person who is convicted ... of committing prior to the effective date of this act a lewd or indecent assault specified in section 944.277(1)(c) ... is eligible for provisional credits " except as specifically described in the reworded subsection (emphasis added ).
In its responsive pleadings in this court the Department of Corrections asserts that "Searcy's offense has been determined to be an excludable offense both before and after the 1990 amendment." However, we cannot determine from the record before us whether this is so. We hold only that summary denial of Searcy's petition, based on an application of the incorrect version of the appropriate statute, was error. Our decision is without prejudice to the Department to establish, after remand, that Searcy is ineligible for provisional credits. See, e.g., Dugger v. Grant, 587 So.2d 608 (Fla. 1st DCA 1991).
Reversed.
1 Mandamus in the circuit court...
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Stovall v. Cooper, 2D02-4606.
...sentence would have expired had the Department properly awarded gain time, habeas corpus is the proper remedy. Searcy v. Singletary, 590 So.2d 1034, 1034 n. 1 (Fla. 2d DCA 1991). Otherwise, a petition for a writ of mandamus is the proper method for review of the Department's denial of gain ......
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Burgess v. Crosby, 1D03-3701.
...is not making a claim to the right to immediate release, a petition for writ of mandamus is the proper remedy. Searcy v. Singletary, 590 So.2d 1034 n. 1 (Fla. 2d DCA 1991), receded from on other grounds, Stovall v. Cooper, 860 So.2d 5 (Fla. 2d DCA 2003); see Turner v. Singletary, 623 So.2d ......
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Newsome v. Singletary, 93-02655
...sentence would have expired had the DOC properly awarded gain time, habeas corpus would be a proper remedy. Searcy v. Singletary, 590 So.2d 1034 n. 1 (Fla. 2d DCA 1991). Otherwise, "[m]andamus in the circuit court where the prisoner is housed is the proper remedy to compel the award of gain......
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Ashley v. Singletary, 97-1203
...corpus, and therefore is the only court with territorial jurisdiction to adjudicate the merits of his claim."); Searcy v. Singletary, 590 So.2d 1034, 1034 n. 1 (Fla. 2d DCA 1991) ("Mandamus in the circuit court where the prisoner is housed is the proper remedy to compel the award of gain-ti......