Summary
reviewing by appeal an order disposing of a petition which was partly reviewable by appeal and partly reviewable by petition for writ of certiorari
Summary of this case from McCray v. DixonOpinion
Case No. 1D00-4462
Opinion filed May 22, 2002.
An appeal from the Circuit Court for Leon County. L. Ralph Smith, Judge.
Appellant, pro se.
Carolyn J. Mosley, Assistant General Counsel, Tallahassee, for Appellee.
ORDER
In this appeal from an order denying the appellant's petition for writ of mandamus, the appellee, Department of Corrections, filed a Motion for an Order Construing this Action as an Original Certiorari Proceeding, pursuant to Sheley v. Florida Parole Commission, 703 So.2d 1202 (Fla. 1998). Because the appellant is entitled to plenary review as to part of the order, we deny the motion.
Although a portion of the order before us reflects the circuit court's appellate role in reviewing quasi-judicial action of the Department of Corrections, the order also involves an original disposition of constitutional claims over which the Department had no jurisdiction. Under Sheley, a portion of the order would be reviewable by the certiorari standard; nevertheless, the case should proceed as an appeal because the original disposition portion of the order is entitled to plenary review. The merits panel will be at liberty to apply a higher certiorari standard of review to the appropriate portion of the order.See Sheley, 703 So.2d at 1205. Accordingly, the appellee's Motion for an Order Construing this Action as an Original Certiorari Proceeding is denied. The action shall proceed as an appeal.
BARFIELD, KAHN, and VAN NORTWICK, JJ., concur.