Summary
reversing the trial court's order denying petition for writ of mandamus with directions to grant the petition because the defendant was excluded from the hearing when the applicable statute stated that the defendant "shall be present at the hearing"
Summary of this case from Florida Caucus of Black St. v. CrosbyOpinion
No. 96-324.
August 23, 1996.
Appeal from Circuit Court, Leon County, William L. Gary, J.
Mark Osterback, pro se, appellant.
Robert A. Butterworth, Attorney General, and Donna La Plante, Assistant Attorney General, Tallahassee, for appellee.
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 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.