IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
KEVIN M. TRACY, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D15-5829
STATE OF FLORIDA,
Appellee.
_____________________________/
Opinion filed May 31, 2017.
An appeal from the Circuit Court for Escambia County.
Ross M. Goodman, Judge.
Kevin M. Tracy, pro se, Appellant.
Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney
General, Tallahassee, for Appellee.
PER CURIAM.
Kevin Tracy appeals the dismissal of his petition for writ of mandamus
pertaining to his records request. Because the proper procedures were not followed
and because factual disputes remain, we reverse.
In his petition, Mr. Tracy requests documents related to the chain of custody
of any deadly weapon used as evidence in his case. The Escambia County Sheriff’s
Office responded by providing the appropriate evidence card. Mr. Tracy asserts
additional documentation is available. The trial court denied Mr. Tracy’s petition
without issuing an alternative writ of mandamus to the respondent requiring him to
show cause why the petition should not be granted. The trial court held, “The records
attached to the Petition show that the knife or knives were destroyed. Thus, there is
nothing that the Court can order anyone to produce.”
Although Mr. Tracy may be mistaken that additional information is available
related to his request, his petition states a facially sufficient claim. If a petition is
facially sufficient, the court must issue an alternative writ of mandamus requiring
the respondent to show cause why the petition should not be granted. Radford v.
Brock, 914 So. 2d 1066, 1068 (Fla. 2d DCA 2005). If the petition and answer to the
alternative raise disputed issues, the trial court must resolve those issues upon
evidence submitted by the parties. Id. A trial court errs in denying a petition unless
there is sworn evidence refuting the petitioner’s allegations. Parish v. State, 59 So.
3d 1229, 1230 (Fla. 4th DCA 2011).
Here, Mr. Tracy filed a facially sufficient petition for writ of mandamus.
However, the trial court failed to issue an alternative writ of mandamus. In addition,
the record contains no sworn statements indicating Mr. Tracy has been provided all
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documents in the State’s possession. 1 Thus, factual disputes remain. Therefore, the
trial court erred in denying Mr. Tracy’s petition. If on remand, the State fails to
provide sworn evidence that all available information has been provided, the trial
court must conduct an evidentiary hearing on the issue prior to denying the
claim. See Ferrier v. Pub. Defender’s Office, 2d Jud. Cir. of Fla., 171 So. 3d 744
(Fla. 1st DCA 2015); Clay Cnty. Educ. Ass’n v. Clay Cnty. Sch. Bd., 144 So. 3d 708
(Fla. 1st DCA 2014); Parish, 59 So. 3d 1229; Johnson v. State, 872 So. 2d 387 (Fla.
4th DCA 2004).
Accordingly, we reverse the order dismissing the petition and remand for
further proceedings consistent with this opinion.
REVERSED and REMANDED.
WOLF, MAKAR, and M.K. THOMAS, JJ., CONCUR.
1
The State was identified as the Respondent, Defendant or Appellee by the trial
court in its final order. The Appellant/Petitioner requested documents from the
Escambia County Sheriff’s Office records custodian. Any subsequent orders should
be directed to the Sheriff’s Office. However, for consistency purposes the State is
referred to as the Appellee.
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