Turner v. Singletary
| Decision Date | 22 July 1993 |
| Docket Number | No. 91-3624,91-3624 |
| Citation | 623 So.2d 537 |
| Parties | 18 Fla. L. Weekly D1740 Sherrill TURNER, Appellant, v. Harry K. SINGLETARY, Secretary, Department of Corrections, Appellee. |
| Court | Florida District Court of Appeals |
Sherrill Turner, pro se.
Judy A. Bone, Asst. General Counsel, Dept. of Corrections, Tallahassee, for appellee.
Appellant challenges the denial of his petition for a writ of mandamus by which he sought to compel the Department of Corrections (DOC) to award incentive gain time based upon his contention that other similarly situated inmates received incentive gain time while he did not. The trial court, after receiving and considering the DOC's response, summarily denied the petition. We reverse and remand for evidentiary hearing with respect to the limited issue of disparate treatment of inmates similarly situated.
Section 944.275(4)(b), Florida Statutes (1991), provides in pertinent part:
(b) For each month in which a prisoner works diligently, participates in training, uses time constructively, or otherwise engages in positive activities, the department may grant up to 20 days of incentive gain-time, which shall be credited and applied monthly.
Subsection (7) of the same statute commands DOC to promulgate rules to implement the granting, forfeiture or restoration of gain time credit. As directed, DOC has enacted Rule 33-11.0065, F.A.C. Under the statute, DOC is granted broad discretion to award incentive gain time, and DOC's rule implementing this statute sets forth comprehensive guidelines and procedures to be followed by DOC's personnel in evaluating an inmate's eligibility for such gain time.
The granting or withholding of incentive gain time by DOC acting within the discretion conferred upon it by law, and pursuant to its duly promulgated rule, is not ordinarily reviewable by means of a petition for writ of mandamus filed in the circuit court. A writ of mandamus cannot be used to compel a public agency clothed with discretion to exercise that discretion in a given manner. Hall v. Key, 476 So.2d 787 (Fla. 1st DCA 1985). To show entitlement to a writ of mandamus, the petitioner must demonstrate a clear legal right to the performance of the act requested, an indisputable legal duty on the part of the respondent, and that no other adequate remedy exists. Id. at 788. A writ of mandamus is the means by which a clear legal right is enforced, and is not the appropriate procedure for the establishment of such a right. State v. Gamble, 339 So.2d 694 (Fla.2d DCA 1976), cert. denied, 345 So.2d 422 (Fla.1977).
Nevertheless, as this court acknowledged in Hall v. Wainwright, 498 So.2d 670 (Fla. 1st DCA 1986), a petition for writ of mandamus may, in certain instances, be a proper remedy for review of DOC's denial of gain time. There we further explained:
While there is no automatic right to receive day-for-day work gain time, Dickinson v. Wainwright, 416 So.2d 40 (Fla. 1st DCA 1982), the procedures for awarding the gain time must be applied uniformly, Pettway v. Wainwright, 450 So.2d 1279 (Fla. 1st DCA 1984). This court has also held that since its jurisdiction to entertain direct appeals by prisoners from final orders of agencies has been eliminated, prisoners may seek their remedy in circuit court by way of a petition for an extraordinary writ.
In Pettway, cited in the above quote, we elaborated specifically upon DOC's discretion to award or not to award incentive gain time, stating:
While it is true that the statute is not mandatory and the DOC may deny incentive gain-time, the DOC must uniformly grant or deny incentive gain-time unless there is some justification and authority for classifying and treating some prisoners different from other prisoners.
450 So.2d at 1280 (emphasis added).
It is apparent from review of appellant's petition and DOC's response that DOC, for the most part, has operated under its established uniform procedures as encompassed within rule 33-11.0065(3)(d)1., the pertinent provisions of which read as follows (d) Incentive gain time allows for a range of awards so that the inmate may be recognized for his individual effort.
1. Any inmate assigned full time to work, vocational or educational programs and rated overall "above satisfactory" shall be considered and may be awarded 1 to 8 days gain time. An inmate rated "outstanding" may be awarded 9 to 16 days gain time. An inmate may be awarded an additional 0 to 4 days gain time when involved in self-betterment programs and other positive activities including, but not limited to, Alcoholics Anonymous, Narcotics...
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Jackson v. Florida Dept. of Corrections, SC92827.
...the requested relief and the respondent must have an indisputable legal duty to perform the requested action. See Turner v. Singletary, 623 So.2d 537, 538 (Fla. 1st DCA 1993). Jackson asserts that he has a right to payment for the duties and tasks he performs in the prison and that the Depa......
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Plymel v. Moore, 1D99-1250.
...of the petition which show entitlement to relief, the petitioner is entitled to mandamus relief. See, generally, Turner v. Singletary, 623 So.2d 537, 539 (Fla. 1st DCA 1993). In a prison disciplinary proceeding, an inmate is entitled to: (1) advance written notice of the disciplinary charge......
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Burgess v. Crosby, 1D03-3701.
...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 537, 538 (Fla. 1st DCA 1993)(holding that in certain instances, a petition for writ of mandamus may be the proper remedy to review the denial of gai......
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Smith v. State, s. 96-00365
...legal right to performance of the act requested, an indisputable legal duty, and no adequate remedy at law. See Turner v. Singletary, 623 So.2d 537 (Fla. 1st DCA 1993). An assistant public defender is an "official" for purposes of mandamus. Eichelberger v. Brueckheimer, 613 So.2d 1372, 1373......