DANIEL C. MEDBERRY, PETITIONER,
v.
CIRCUIT COURT FOR BREVARD COUNTY, FLORIDA, RESPONDENT
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Medberry petitioned for a writ of mandamus to compel the Circuit Court for Brevard County to act on his pending motion to compel better answers to interrogatories in a replevin action. The Fifth District Court of Appeal denied the petition, holding that a petitioner must first make an express demand for performance before seeking mandamus relief.
A petitioner seeking mandamus must first make an express, distinct demand for performance to the court before seeking mandamus relief from an appellate court. The fact that Medberry is incarcerated does not excuse this requirement. The petition is denied without prejudice to refiling if the circuit court fails to act within a reasonable time after petitioner brings the motion to the court's attention.
[1] A writ of mandamus will not issue to compel a court to act on a motion unless the petitioner has first made an express, distinct demand for performance to that court.
[2] A petitioner seeking to compel action on the part of a judge or public official must first make an express, distinct demand for performance to that person or court before…
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Join FLexlaw to unlock all legal intelligence“A petitioner seeking to compel action on the part of a judge or public official must first make an express, distinct demand for performance to that person or court, before we shall consider the remedy of mandamus.”
Establishes the procedural prerequisite that must be satisfied before mandamus relief is available.
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Join FLexlaw to unlock all legal intelligenceIn 1998, Medberry filed a complaint for writ of replevin against McClure and the Bible Truth Church to recover possession of six boxes of religious bo…
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Medberry petitions this court for a writ of mandamus to compel respondent, Circuit Court of Brevard County, to act upon his case. In 1998, Medberry filed a complaint for writ of replevin against McClure and the Bible Truth Church to recover possession of six boxes of religious books and publications. Discovery progressed. Medberry alleges that on February 3, 1999, he served a motion to compel better answers to interrogatories from the defendants. Nothing has transpired since that date, and Medberry now asks this court to order the circuit court to act on his motion.
We decline to do so at this point. In Powell v. Watson, 565 So. 2d 845 (Fla. 5th DCA 1990), we noted that a document filed with a court clerk may be simply placed in a court file and the court’s attention not drawn to it, until a hearing is scheduled, a proposed order is supplied, or the court undertakes a review of pending actions in general. A petitioner seeking to compel action on the part of a judge or public official must first make an express, distinct demand for performance to that person or court, before we shall consider the remedy of mandamus. See Florida Pharmacy Ass’n, Inc. v. Strong, 604 So. 2d 529 (Fla. 1st DCA 1992). The fact that Medberry is currently incarcerated in Union Correctional Facility does not excuse his duty to first apply to the circuit court for a ruling before approaching this court.
Our denial of Medberry’s petition for writ of mandamus is without prejudice to file a new petition should the circuit court fail to act within a reasonable time after petitioner brings the pending motion to the court’s attention.
Petition for Writ of Mandamus DENIED.
THOMPSON, C.J., and HARRIS, J., concur.
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Smartt v. First Union Nat'l Bank, 771 So. 2d 1232 (Fla. 5th DCA 2000)…e on his opponent’s motion to dismiss Smartt’s complaint in a civil action. Smartt alleges that he filed a motion for a hearing on July 11, 2000, but the trial court has not responded in any manner. In Medberry v. Circuit Court for Brevard County, 762 So. 2d 1037 (Fla. 5th DCA 2000), we held that a petitioner seeking to compel action on the part of a judge must first make an express distinct demand for performance before mandamus will be considered. A document filed with the clerk of the court may merely be…
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Jacobs v. State, 827 So. 2d 294 (Fla. 5th DCA 2002)…sheet in sentencing him for violating his probation. However, Jacobs has not alleged that he has filed any motion in the trial court seeking correction of his scoresheet and resentencing. As explained in Medberry v. Circuit Court for Brevard County, 762 So. 2d 1037 (Fla. 5th DCA 2000), an appellate court will not consider a petition for mandamus to compel- a respondent to perform the requested action unless the petitioner has first made an express, distinct demand for performance on the respondent. In additi…
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Romeo Ward v. State, 875 So. 2d 771 (Fla. 1st DCA 2004)…PER CURIAM. Because petitioner fails to show that he has made an express, distinct demand for performance to the circuit court, we deny the petition for writ of mandamus. See Medberry v. Circuit Court for Brevard County, 762 So. 2d 1037 (Fla. 5th DCA 2000). BARFIELD, DAVIS and BENTON, JJ., concur.…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Fla. Pharmacy Ass'n, Inc. v. Strong, 604 So. 2d 529 (Fla. 1st DCA 1992)
- Rory Wayne Powell v. Hon. John W. Watson, III, 565 So. 2d 845 (Fla. 5th DCA 1990)