Jimmy Stephens v. Florida Department of Corrections

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________

No. 1D18-3512 _____________________________

JIMMY STEPHENS,

Appellant,

v.

FLORIDA DEPARTMENT OF CORRECTIONS,

Appellee. _____________________________

On appeal from the Circuit Court for Leon County. John C. Cooper, Judge.

October 1, 2019

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.