AMOS RAGAN, APPELLANT,
v.
JAMES MCDONOUGH, SECRETARY OF THE DEPARTMENT OF CORRECTIONS, AND FLORIDA PAROLE COMMISSION, APPELLEES
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Appellant Ragan challenged the denial of his habeas corpus petition attacking a 2002 parole revocation, arguing the circuit court prematurely ruled without giving him an opportunity to file a reply. The Fourth District reversed and remanded because the circuit court failed to follow procedural rules requiring consideration of reply briefs in habeas corpus proceedings.
The court reversed and remanded because the circuit court failed to give appellant an opportunity to file a reply before denying his habeas corpus petition, which is required by Florida Rule of Appellate Procedure 9.100(k). The circuit court must reconsider the issue raised in the proposed reply regarding whether the statute of limitations defense may be avoided if the Commission failed to notify appellant of his right to seek review.
[1] A circuit court errs by denying a petition for writ of habeas corpus before the petitioner has had an opportunity to file a reply to the respondent's affirmative defense.
[2] A petitioner in a habeas corpus proceeding has the right to serve a reply to the respondent's answer.
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Join FLexlaw to unlock all legal intelligence“Florida Rule of Appellate Procedure 9.100(k) indicates that a petitioner in a habeas corpus proceeding "may serve a reply."”
Establishes the procedural right to file a reply in habeas corpus proceedings
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Join FLexlaw to unlock all legal intelligenceIn October 2006, Ragan filed a habeas corpus petition challenging the Parole Commission's 2002 revocation of his parole. The circuit court issued an o…
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PER CURIAM.
In October, 2006, appellant filed a petition for writ of habeas corpus attacking the Parole Commission’s 2002 revocation of his parole. The circuit court issued an order to show cause directing the Commission to tell the court why it should not grant the relief requested. The Commission filed its response. Five days later, the circuit court entered its order denying the petition, ruling that the challenge to the 2002 order was time barred pursuant to section 95.11(5)(f), Florida Statutes (2006).
Appellant contends that the order denying his petition was prematurely entered, because it issued before he had a chance to file his reply. Appellant moved for rehearing and attached his proposed reply to the motion. The circuit court denied the motion for rehearing.
Florida Rule of Appellate Procedure 9.100(k) indicates that a petitioner in a habeas corpus proceeding “may serve a reply.” Both Salow v. State, 766 So. 2d 1222 (Fla. 5th DCA 2000), and Haralson v. State, 844 So. 2d 817 (Fla. 5th DCA 2003), required circuit courts to reconsider deni als of habeas corpus petitions because the courts rendered decisions without giving petitioners a chance to file a reply. See Sheppard v. Crosby, 891 So. 2d 1156 (Fla. 4th DCA 2005) (involving mandamus proceeding). The Commission concedes that the circuit court should have given appellant an opportunity to file a reply before ruling on the petition.
The purpose of a reply is to avoid an affirmative defense. See Fla. R. Civ. P. 1.100(a). The Commission asserted the affirmative defense of statute of limitations. Appellant’s proposed reply said that (1) he “did not possess personal knowledge ... that he had a right to seek judicial review” of the order revoking parole and (2) the Commission “impeded his right to timely petition for judicial review” by failing to “advise him at the conclusion of the revocation process of his right to seek judicial review.” As the Commission notes in its brief, the issue of the Commission’s obligation to notify a releasee of his right to seek review of an order revoking supervision was not litigated in the circuit court.
We reverse and remand to the circuit court to consider the issue raised in the proposed reply: whether appellant may avoid the statute of limitations if the Commission failed to notify him of his right to seek review of the order revoking supervision.
Reversed and remanded.
SHAHOOD, GROSS and MAY, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Salow v. State, 766 So. 2d 1222 (Fla. 5th DCA 2000)
- Haralson v. State, 844 So. 2d 817 (Fla. 5th DCA 2003)
- Westport Recovery Corp. v. Dellene I. Salvatore, 891 So. 2d 1156 (Fla. 4th DCA 2005)
- Sheppard v. Crosby, 891 So. 2d 1156 (Fla. 4th DCA 2005)