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FL Prisoner Entitled to Evidence Production and to Be Present at Disciplinary Hearing
Florida's First District Court of Appeal held that the failure to produce
an object that was allegedly a weapon when the prisoner's defense was that
the object was not a weapon, entitled the prisoner mandamus relief. The
disciplinary team has a duty to view the weapon at the hearing or provide
reasons for failing to do so. The court also, found the prisoner excluded
from the hearing during the taking of some of the evidence to be contrary
to § 944.28[c], Florida Statutes. The case was remanded for the circuit
court to determine the precise remedy to be granted. See: Osterback v.
Singletary, 679 So.2d 43 (Fla. 1st DCA 1996).
an object that was allegedly a weapon when the prisoner's defense was that
the object was not a weapon, entitled the prisoner mandamus relief. The
disciplinary team has a duty to view the weapon at the hearing or provide
reasons for failing to do so. The court also, found the prisoner excluded
from the hearing during the taking of some of the evidence to be contrary
to § 944.28[c], Florida Statutes. The case was remanded for the circuit
court to determine the precise remedy to be granted. See: Osterback v.
Singletary, 679 So.2d 43 (Fla. 1st DCA 1996).
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Related legal case
Osterback v. Singletary
| Year | 1996 |
|---|---|
| Cite | 679 So.2d 43 (Fla. 1st DCA 1996) |
| Level | State Trial Court |
| Attorney Fees | 0 |
| Damages | 0 |
| Injunction Status | N/A |
MARK OSTERBACK, Appellant, v. HARRY K. SINGLETARY, JR., Secretary, Florida Department of Corrections, Appellee.
CASE NO. 96-324
COURT OF APPEAL OF FLORIDA, FIRST DISTRICT
679 So. 2d 43; 1996 Fla. App. ; 21 Fla. L. Weekly D 1927
August 23, 1996, Filed
SUBSEQUENT HISTORY: [**1] Released for Publication September 10, 1996.
PRIOR HISTORY: An appeal from the Circuit Court for Leon County. William L. Gary, Judge.
DISPOSITION: Decision of the trial court reversed and remanded with directions to grant the petition for writ of mandamus. The precise remedy to which appellant is entitled shall be determined by the trial court upon remand.
COUNSEL: Mark Osterback, pro se, appellant.
Robert A. Butterworth, Attorney General, and Donna La Plante, Assistant Attorney General, Tallahassee, for appellee.
JUDGES: MINER, MICKLE and LAWRENCE, JJ., CONCUR.
OPINION: [*44] PER CURIAM
Mark Osterback appeals an order of the circuit court which denied his petition for writ of mandamus. That petition challenged a disciplinary proceeding where he was charged with possession of a weapon. After a hearing, he was found guilty and penalized by disciplinary confinement and forfeiture of gain-time.
We find that the mandamus petition showed entitlement to relief on two issues. Appellant's defense at the disciplinary hearing was that the object in question was not a weapon. The team improperly denied his request for production of the object without giving valid reasons for doing [**2] so. Young v. Lynch, 846 F.2d 960 (4th Cir. 1988); Young v. Kann, 926 F.2d 1396 (3d Cir. 1991). We also find that appellant was excluded from the hearing during the taking of some of the evidence contrary to section 944.28(2)(c), Florida Statutes (1995) and Florida Administrative Code Rule 33-22.006(1)(b).
We accordingly reverse the decision of the trial court and remand with directions to grant the petition for writ of mandamus. The precise remedy to which appellant is entitled shall be determined by the trial court upon remand.
MINER, MICKLE and LAWRENCE, JJ., CONCUR.
CASE NO. 96-324
COURT OF APPEAL OF FLORIDA, FIRST DISTRICT
679 So. 2d 43; 1996 Fla. App. ; 21 Fla. L. Weekly D 1927
August 23, 1996, Filed
SUBSEQUENT HISTORY: [**1] Released for Publication September 10, 1996.
PRIOR HISTORY: An appeal from the Circuit Court for Leon County. William L. Gary, Judge.
DISPOSITION: Decision of the trial court reversed and remanded with directions to grant the petition for writ of mandamus. The precise remedy to which appellant is entitled shall be determined by the trial court upon remand.
COUNSEL: Mark Osterback, pro se, appellant.
Robert A. Butterworth, Attorney General, and Donna La Plante, Assistant Attorney General, Tallahassee, for appellee.
JUDGES: MINER, MICKLE and LAWRENCE, JJ., CONCUR.
OPINION: [*44] PER CURIAM
Mark Osterback appeals an order of the circuit court which denied his petition for writ of mandamus. That petition challenged a disciplinary proceeding where he was charged with possession of a weapon. After a hearing, he was found guilty and penalized by disciplinary confinement and forfeiture of gain-time.
We find that the mandamus petition showed entitlement to relief on two issues. Appellant's defense at the disciplinary hearing was that the object in question was not a weapon. The team improperly denied his request for production of the object without giving valid reasons for doing [**2] so. Young v. Lynch, 846 F.2d 960 (4th Cir. 1988); Young v. Kann, 926 F.2d 1396 (3d Cir. 1991). We also find that appellant was excluded from the hearing during the taking of some of the evidence contrary to section 944.28(2)(c), Florida Statutes (1995) and Florida Administrative Code Rule 33-22.006(1)(b).
We accordingly reverse the decision of the trial court and remand with directions to grant the petition for writ of mandamus. The precise remedy to which appellant is entitled shall be determined by the trial court upon remand.
MINER, MICKLE and LAWRENCE, JJ., CONCUR.