Appellant filed a petition for writ of habeas corpus in the circuit court requesting that appellee be directed to restore gain time withheld during the month of December, 1995. The lower court elected to treat the pleading as a petition for writ of mandamus and denied relief on the basis that appellant failed to specify the type of gain time to which he was claiming entitlement and failed to show that he had a clear legal right to receive gain time. No show cause order was issued. Appellant then filed a motion for rehearing, asserting that he had been sentenced as an habitual violent felony offender, thus entitling him only to incentive gain time, and that in his petition he was referring to incentive gain time to which he claimed entitlement under section 944.275(4)(b), Florida Statutes, and Florida Administrative Code Rule 33-11.0065. Rehearing was denied and this appeal ensued.
Upon our review of the record, we conclude that the lower court erred in summarily denying the petition as deficient. The allegations contained in the petition and in the motion for rehearing specifically refer to Florida Administrative Code Rule 33-11.0065, which governs incentive gain time, and are sufficient to identify the type of gain time to which appellant is claiming entitlement. We reverse and remand with directions to the trial court to reconsider the petition in light of the foregoing.
REVERSED and REMANDED for reconsideration.
MINER and ALLEN, JJ., concur.