IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
WILLIAM T. MORRISON, JR., NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED.
v. CASE NO. 1D13-5556
FLORIDA DEPARTMENT OF
CORRECTIONS,
Appellee.
_______________________________/
Opinion filed January 2, 2015.
An appeal from an order of the Circuit Court for Leon County.
Terry P. Lewis, Judge.
William T. Morrison, Jr., pro se, Appellant.
Pamela Jo Bondi, Attorney General, and Shirley Wilson Durham, Assistant
Attorney General, Tallahassee, for Appellee.
PER CURIAM.
Appellant William T. Morrison, an inmate in the custody of the Florida
Department of Corrections (FDOC), seeks review of an order of the Leon County
Circuit Court which dismissed his petition for writ of mandamus as moot. We
agree that the order of dismissal was premature, and we therefore reverse that order
and remand this matter to the circuit court for further proceedings.
Morrison filed four sets of inmate grievances which complained that the
FDOC was not processing his inmate mail appropriately. The first grievance
claimed that mail that Morrison received from a reporter from the Kansas City Star
was not treated as privileged pursuant to Florida Administrative Code Rule 33-
210.103. The second grievance disputed the FDOC’s processing of Morrison’s
mail from the Florida Bar and claimed that such mail was also privileged under the
same rule. The third grievance complained that FDOC was not properly
processing privileged mail from a news outlet called “Prison Legal News.” The
fourth and final set of grievances alleged that the FDOC was continually failing to
treat correspondence from a private attorney, Lance T. Weber, as legal mail
pursuant to Florida Administrative Code Rule 33-210.102.
The initial petition for writ of mandamus filed on March 18, 2010, sought
review only of the denials of the grievances relating to the correspondence from
the Kansas City Star and the Florida Bar. The appellant, however, moved to
supplement the petition on October 6, 2011, to review the grievances relating to the
correspondence from Prison Legal News, and that motion was granted via order of
October 27, 2011. Prior to the lower tribunal entering a dispositive ruling on the
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petition and supplemental petition, the petitioner filed a second motion to
supplement on August 22, 2012, seeking to include the grievances regarding
correspondence from Attorney Weber. No ruling was ever entered on that motion.
Attached to the August 22, 2012, motion to supplement, Morrison included
administrative grievances which complained that his mail from Attorney Weber
was not properly processed pursuant to Rule 33-210.102. He attached copies of
the envelopes from Attorney Weber, which were clearly marked on their face
“SPECIAL MAIL – LEGAL MAIL,” “TO BE OPENED ONLY IN PRESENCE
OF ADDRESSEE,” and “CONFIDENTIAL ATTORNEY-CLIENT WORK
PRODUCT.” The envelope bears a handwritten note, appearing to be from FDOC
staff, which reads “We called these people & let them know this is NOT
considered legal mail – only info & questionair [sic] material.” Morrison also
attached an affidavit filed by Attorney Weber, which asserted that the letter in
question was an “investigatory letter” concerning an active case for which Mr.
Morrison is a potential witness. The petitioner also attached copies of his
grievances and denials relating to the processing of this mail.
Via order of October 21, 2013, the circuit court dismissed the petition for
writ of mandamus as moot, without first ruling on the August 22, 2012, motion to
supplement. In the order of dismissal, the court noted that the FDOC had argued in
its response that Florida Administrative Code Rule 33-210.103 had “been clarified
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to include mail to and from the Florida Bar and news media, and that the grievance
responses concerning the plaintiff’s correspondence would be changed to reflect
that.” Upon that basis, the court concluded that the petition was moot. As an
initial matter, we note that we are not persuaded that a party’s promise to take
some action in the future (here, the FDOC’s representation that it would change the
petitioner’s grievances, having not yet done so) is sufficient to render a cause of
action moot. That conclusion does not, however, form the primary basis for our
decision.
In the instant appeal, Morrison raises several arguments which do not
warrant further discussion. Among these, however, he argues that the petition for
writ of mandamus was not moot because there was a pending motion to
supplement the petition with additional claims (specifically, the claims regarding
the processing of Morrison’s correspondence from Attorney Weber) at the time of
the dismissal. The FDOC argues, in relevant part, that the circuit court correctly
dismissed the petition as moot, and notes that “[i]f the trial court reaches the right
result, but for the wrong reasons, it will be upheld if there is any basis which would
support the judgment in the record.” Dade County Sch. Bd. v. Radio Station
WQBA, 731 So. 2d 638, 644 (Fla. 1999).
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We agree with the appellant that the circuit court failed to complete its
judicial labor by entering a ruling on the motion to supplement (for all practical
purposes a motion to amend) the petition. Rule 1.190(a) provides:
A party may amend a pleading once as a matter of course
at any time before a responsive pleading is served or, if
the first pleading is one to which no responsive pleading
is permitted and the action has not been placed on the
trial calendar, may so amend at any time within 20 days
after it is served. Otherwise, a party may amend a
pleading only by leave of court or by written consent of
the adverse party. If a party files a motion to amend a
pleading, the party shall attach the proposed amended
pleading to the motion. Leave of court shall be given
freely when justice so requires. A party shall plead in
response to an amended pleading within ten days after
service of the amended pleading, unless the court orders
otherwise.
Fla. R. Civ. P. 1.190(a) (emphasis added). Here, this was a subsequent motion to
amend, and the decision to grant or deny that motion was within the discretion of
the circuit court. Id. However, the circuit court did not enter any ruling on the
motion.
We cannot conclude that the failure to rule on the petitioner’s motion to
supplement the petition with the claims regarding the processing of his legal mail
is subject to the “tipsy coachman” doctrine set forth in Dade County Sch. Bd. v.
Radio Station WQBA, 731 So. 2d at 644. Under Rule 33-210.102, “legal mail” is
defined as “mail to and from various entities,” including “(b) state attorneys, (c)
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private attorneys, (d) public defenders, [and] (e) legal aid organizations.” See Fla.
Admin. Code R. 33-210.102 (emphasis added). Rule 33-210.102(8)(d) requires
that legal mail be processed the same way as privileged mail: opened in the
presence of the inmate to determine that the mail is legal mail and contains no
unauthorized items. See Fla. Admin. Code R. 33-210.102(8)(d). During this
process, only the letterhead and signature are to be read. See id. Here, the record
shows that the FDOC opened and read letters from a private attorney to the
appellant outside his presence and in all respects treated that correspondence as
routine mail. As to the inclusion of a “questionnaire” with the correspondence,
questionnaires – especially involving potential or pending litigation – are not
included anywhere in the list of prohibited items found in Rule 33-210.102. 1
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That rule provides that “[i]nmates shall be permitted to receive only legal
documents, legal correspondence, written materials of a legal nature (other than
publications), and self-addressed stamped envelopes through legal mail.” Fla.
Admin. Code R. 33-210.102(6). Items not permissible for inclusion in legal mail
but permissible for inclusion in routine mail include “1. Greeting cards, blank
greeting cards, stationery or other blank paper or envelopes; 2. Articles or
clippings or other written materials of a non-legal nature; 3. Photographs, unless
related to the inmate’s legal case . . . [and] 4. U.S. postage stamps, the value of
which cannot exceed the equivalent of 20 (1 oz.) first class stamps.” Fla. Admin.
Code R. 33-210.102(6)(a)(1-4). Furthermore, Rule 33-210.102 goes on to provide
that items which are prohibited from routine mail are also prohibited from
privileged mail, including “1. Non-paper items; 2. Items of a non-communicative
nature such as lottery tickets or matchbooks; 3. Stickers or stamps (other than
postage stamps, postal service attachments, and address labels affixed to outside of
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In view of the foregoing, we conclude that it was error for the trial court to
fail to rule on the appellant’s motion to supplement the petition, and we cannot
conclude, without more, that the error was harmless. We therefore REVERSE the
circuit court’s order denying Morrison’s petition as moot, and we REMAND for
further proceedings.
LEWIS, C.J. and VAN NORTWICK, J., CONCUR; ROWE, J., CONCURS in
result.
envelope); 4. Address labels (other than those affixed to the outside of the
envelope); 5. Laminated cards or other laminated materials.” Fla. Admin. Code R.
33-210.102(6)(b)(1-5).
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