WILLIAM CHESTER COLE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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PER CURIAM.
AFFIRMED.
HAWKES and THOMAS, JJ., concur, ERVIN, III, RICHARD W., Senior Judge, concurs with written opinion.
ERVIN, III, RICHARD W., Senior Judge.,
concurring.
Inmate William Chester Cole seeks review of an order dismissing his petition for writ of mandamus challenging the Department of Corrections’s calculation of gain time credits applied to his sentences. Relying on Kalway v. Singletary, 708 So. 2d 267 (Fla.1998), which had held that a petition for extraordinary relief must be filed within 30 days from the time that administrative remedies are exhausted, the lower court dismissed the petition as time-barred, noting that Cole had previously filed a petition for the same relief in the Leon County Circuit Court, resulting in the dismissal of the action for lack of jurisdiction on the ground that the relief sought constituted a collateral challenge to his sentence; as a consequence, the court in Leon County concluded that the sentencing court, which it was not, should entertain the petition.
The lower court’s order correctly noted that the dismissal was incorrect, citing Burgess v. Crosby, 870 So. 2d 217 (Fla. 1st DCA 2004) (challenge to gain time determination is not a collateral challenge to a sentence). Because Cole did not appeal the prior dismissal, the lower court dismissed the challenge for the reason that it was untimely filed.
Notwithstanding the dismissal of his action, Cole retains the option of seeking relief from judgment via Florida Rule of Civil Procedure 1.540(b) in the Leon County Circuit Court at any time on the ground that the judgment entered was void.
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Bryant v. State, 102 So. 3d 660 (Fla. 2d DCA 2012)…prime example of cases which, despite being in conflict with the modern trend, have no negative treatment attached. However, the full list of conflicting cases is much longer: See Reed v. State, 978 So. 2d 230 (Fla. 4th DCA 2008); Charles v. State, 950 So. 2d 486 (Fla. 4th DCA 2007); Gunn v. State, 852 So. 2d 909 (Fla. 4th DCA 2003); Cross v. State, 834 So. 2d 961 (Fla. 4th DCA 2003); Washington v. State, 823 So. 2d 248 (Fla. 4th DCA 2002); Lea-Scandrett v. State, 804 So. 2d 531 (Fla. 1st DCA 2002); Williams…
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Derick Reed v. State, 978 So. 2d 230 (Fla. 4th DCA 2008)…order denying his first rule 3.850 motion. Our affirmance is without prejudice to appellant’s right to refile the motion within thirty days after this court’s mandate issues in the pending appeal, case 4D07-3652, if necessary. See Charles v. State, 950 So. 2d 486 (Fla. 4th DCA 2007). WARNER, FARMER and STEVENSON, JJ., concur.…
Authorities Cited
- Burgess v. Crosby, 870 So. 2d 217 (Fla. 1st DCA 2004)
- Kalway v. Singletary, 708 So. 2d 267 (Fla. 1998)