JIMMY STEPHENS
v.
FLORIDA DEPARTMENT OF CORRECTIONS
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A mandamus petition challenging the timeliness of filing should not be dismissed without an evidentiary hearing when a material factual dispute exists regarding receipt of the contested document.
[1] A trial court may not grant a motion to dismiss a mandamus petition on grounds of untimely filing without holding an evidentiary hearing when material factual disputes ex…
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Join FLexlaw to unlock all legal intelligenceJimmy Stephens appealed the dismissal of his petition for writ of mandamus against the Florida Department of Corrections. The petition concerned the t…
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PER CURIAM.
Jimmy Stephens appeals an order dismissing his petition for writ of mandamus. He claims that the filing of his petition was timely under section 95.11(8), Florida Statutes, and that the trial court erred in dismissing his action without holding an evidentiary hearing on the issue of whether Stephens received the response to his grievance appeal (it appears to have been sent to the incorrect facility). Because a disputed issue of fact exists, the dismissal of Stephens’ petition is erroneous, see Owens v. Crews, 131 So. 3d 799 (Fla. 1st DCA 2013), and we remand for an evidentiary hearing.
REVERSE and REMAND for further proceedings.
MAKAR, OSTERHAUS, and BILBREY, JJ., concur. _____________________________
Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________
Jimmy Stephens, pro se, Appellant.
Kenneth S. Steely, General Counsel, Department of Corrections, Ashley Moody, Attorney General, and Leslie A. Healer and Brett Michael Roy Coleman, Assistant Attorneys General, Tallahassee, for Appellee.
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