Third District Court of Appeal
State of Florida
Opinion filed September 20, 2017.
Not final until disposition of timely filed motion for rehearing.
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No. 3D17-1907
Lower Tribunal No. 93-29380
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Eugene Allen,
Petitioner,
vs.
The State of Florida,
Respondent.
On Petition for Writ of Certiorari from the Circuit Court for Miami-Dade
County, Michael A. Hanzman, Judge.
Eugene Allen, in proper person.
Pamela Jo Bondi, Attorney General, for respondent.
Before LAGOA, EMAS and SCALES, JJ.
SCALES, J.
Eugene Allen files this petition for writ of certiorari seeking to compel the
Department of Corrections (“DOC”) to restore gain time he previously forfeited
due to violation of his conditional release. We deny the writ without prejudice to
Allen obtaining a final order from DOC from which Allen can seek mandamus
relief in the circuit court.
“The proper remedy to compel an award of gain time is a petition for writ of
mandamus filed in the circuit court after administrative procedures through DOC
have been exhausted.” Duggan v. Dep’t of Corrections, 665 So. 2d 1152, 1153
(Fla. 5th DCA 1996) (emphasis added). While not entirely clear on the scant
record before us, it appears the trial court found that it was without jurisdiction to
consider, and therefore denied, Allen’s petition for writ of mandamus because
Allen did not exhaust DOC administrative procedures prior to seeking relief in the
circuit court. Specifically, the only thing in the record before us is an unsigned
memorandum—purportedly from someone working at the Bureau of Classification
Management for DOC to Everglades Correctional Institution, where Allen is
currently incarcerated—which states that Allen is ineligible for restoration of gain
time.
While Allen may have initiated an administrative remedy, it does not appear
to us that DOC has taken final action in this matter. Therefore, it appears the trial
court properly denied Allen’s mandamus petition because it lacked jurisdiction.
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Similarly we deny Allen’s petition for writ of certiorari without prejudice so that
Allen may exhaust his administrative remedies and, if unsuccessful, file a petition
for writ of mandamus in the circuit court.
Petition denied.
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