Opinion
Case No. 2D03-4364.
Opinion filed August 13, 2004.
Petition for Writ of Prohibition to the Circuit Court of Polk County, sitting in its appellate capacity.
Clarence W. Downs, pro se.
Wendy Benner-Leon, Assistant General Counsel, Department of Corrections, Tallahassee, for Respondent.
ON MOTION TO ENFORCE MANDATE
Clarence W. Downs has filed a petition for writ of prohibition seeking enforcement of this court's decision in Downs v. Crosby, 874 So.2d 648 (Fla. 2d DCA 2004). We treat the petition as a motion to enforce mandate and grant the motion.
This court's decision in Downs quashed an order of the circuit court which denied Downs' petition for writ of mandamus/habeas corpus. Id. at 652. In his petition for writ of mandamus/habeas corpus, Downs sought review of an order of the Department of Corrections which denied Downs provisional credits on his guidelines sentences. Id. at 649. In quashing the circuit court's order denying Downs' petition, this court held that the circuit court erroneously relied on the amended version of the applicable statute concerning provisional credits. Id. at 652. The case was remanded to the circuit court with directions for the court to reconsider Downs' petition for writ of mandamus/habeas corpus. Id.
This court subsequently denied the Department's motion for rehearing, and mandate issued on June 24, 2004. The Department is currently seeking discretionary review in the supreme court, and this court has denied the Department's motion to recall mandate. The Department has also filed motions for stays in the supreme court and the circuit court. The circuit court has not yet reconsidered Downs' petition for writ of mandamus/habeas corpus and has not ruled on the Department's motion for stay.
In his motion to enforce mandate, Downs requests that this court order the circuit court to reconsider his writ of mandamus/habeas corpus in compliance with the mandate issued pursuant to this court's decision inDowns. After mandate issues, compliance with that mandate by the circuit court is "a purely ministerial act." Straley v. Frank, 650 So.2d 628, 628 (Fla. 2d DCA 1994). Without permission from the appellate court, the circuit court is without jurisdiction to evade the mandate. Blackhawk Heating Plumbing Co. v. Data Lease Fin. Corp., 328 So.2d 825, 827 (Fla. 1975). A stay of proceedings in this case would be an evasion of our mandate which is outside the circuit court's jurisdiction regardless of whether review has been sought in the supreme court. See Robbins v. Pfeiffer, 407 So.2d 1016, 1017 (Fla. 5th DCA 1981). We therefore order the circuit court to rule on Downs' original petition for writ of mandamus/habeas corpus in accordance with our decision in Downs.
NORTHCUTT, STRINGER, and KELLY, JJ., Concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED