IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT OF FLORIDA Case Number: 1D10-3602 Lower Tribunal Number: 2009-CA-003903 ______________________________________________________

WALTER A. MCNEIL, Secretary, Florida Department of Corrections, Appellant, vs. JOHN BAILEY, Appellee. _______________________________________________________ ANSWER BRIEF OF APPELLEE _______________________________________________________ On Appeal from the Circuit Court of the Second Judicial Circuit Court, In and for Leon County, Florida ______________________________________________________ SUBMITTED BY: BERNARD F. DALEY, JR. Florida Bar No. 263141 Attorney for Appellee The Law Office of Bernard F. Daley, P.A. 901 North Gadsden Street Tallahassee, Florida 32303 Telephone: (850)224-5823 Fax: (850)222-4045 Email: daleylaw@nettally.com

TABLE OF CONTENTS PAGE(S) TABLE OF CITATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv STATEMENT OF THE CASE AND OF THE FACTS . . . . . . . . . . . . . . . . . . . .1-3 SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4 ARGUMENT ISSUE I . . . . . . . . . . . . . . . . . . . . . . . . . . 5-6 Whether The Lower Tribunal Erred By Transferring the Petition for Writ Of Mandamus Challenging A Prison Disciplinary Action to a Venue Outside of Leon County, Where The Return Of Forfeited Gain Time Will Not Entitle The Prisoner To Immediate Release From Department Custody ISSUE II . . . . . . . . . . . . . . . . . . . . . . . . . 6-8 Whether The Lower Tribunal Erred By Not Dismissing The Claims In The Petition Related To Appellees Placement On Close Management And Ruling On The Disciplinary Report Challenge Which Was Properly Before The Court CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 CERTIFICATE OF TYPEFACE AND SIZE COMPLIANCE . . . . . . . . . . . . . 10

TABLE OF CITATIONS CASES Bush v. State, 945 So.2d 1207 (Fla. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 6 Kendrick v. McNeil, 6 So.3d 657 (Fla. 1st DCA 2009) . . . . . . . . . . . . . . . . . . . . . . 3 CONSITUTIONS, STATUTES, AND OTHER AUTHORITIES Art. V, 4(B)(1), Florida Constitution (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Rule 9.030, Florida Rule of Appellate Procedure . . . . . . . . . . . . . . . . . . . . . . . . . .1 Rule 9.130(a)(3)(A), Florida Rule of Appellate Procedure . . . . . . . . . . . . . . . . . . . 1

PRELIMINARY STATEMENT In this brief, the Appellee, JOHN BAILEY, will be referred to by name, or as he stood below, e.g., the Petitioner. The Appellant, the Honorable Walter McNeil, is the appointed Secretary of the Florida Department of Corrections. As such, his appearance herein is nominal. Accordingly, Appellee elects to primarily refer to the Department of Corrections (the Department, or the D.O.C.) in this brief, as that agency conducted the underlying administrative proceeding. References to the Initial Brief of Appellant are indicated by the symbol I.B., followed by the specific page number(s) cited, and references to the exhibits in the Appendix thereto are indicated by the symbol I.B. App., followed by the page number(s) cited. Citations are in the format prescribed by Florida Rule of Appellate Procedure 9.800. For consistency and clarity, Appellee uses the same abbreviations used by Appellant in the Initial Brief.

STATEMENT OF THE CASE AND OF THE FACTS Mr. Bailey generally agrees with Appellants statement of the case and of the facts, subject to the following additions and clarifications. I. Nature of the Case Pursuant to the provisions of Florida Rule of Appellate Procedure 9.130(a) (3)(A), the Department herein appeals the lower courts rendition on May 21, 2010 of a non-final Order of Transfer, which therein determined that venue for Mr. Baileys extraordinary writ petition was in Charlotte County, Florida. (I.B. App. 142-143). The order resulted from the unexplained sua sponte review of Mr. Baileys pro se petition for writ of mandamus, which the court re-characterized as one seeking habeas corpus relief. This Court has appellate jurisdiction to review the non-final order rendered by the lower court pursuant to Article V, section 4(b)(1) of the Florida Constitution and Florida Rule of Appellate Procedure 9.030(1)(B). See also Fla. R. App. P. 9.130(a)(3)(A). II. Course of Proceedings Below. Pertinently, Mr. Bailey originally filed his pro se emergency petition on August 20, 2010, in the Eighth Judicial Circuit, in and for Union County, Florida. See John Bailey v. Walter McNeil, No. 2009-CA-0115 (Fla. 8th Cit. Ct.) 1 Therein, 1 In the Initial Brief, Appellant incorrectly stated that Mr. Bailey filed his petition while housed at Charlotte C.I. (I.B., at page 3 fn. 3; page 14) That misstatement 5

he sought judicial review of the Departments finding that on June 5, 2009, while housed at Union C.I. in Raiford, Florida, he committed the rule infractions alleged in four (4) separate disciplinary reports (DR), and the Departments forfeiture of gain time that resulted from those guilty findings. However, he also indicated in his pro se petition that he sought immediate release from close management (CM claims). Following Mr. Baileys supplement to his petition, the Eighth Circuit Court found that while he mentioned CM relief in his pro se petition, he actually sought judicial review of the Departments DR action and gain time forfeiture that followed. In an order entered on September 30, 2009, the Eighth Circuit Court found that pursuant to Bush v. State, 945 So.2d 1207 (Fla. 2006), jurisdiction and venue for Mr. Baileys mandamus petition was proper in the county where the Department maintained its headquarters, e.g., Leon County and thus transferred the case to the Second Judicial Circuit, in and for Leon County, Florida. See John Bailey v. Walter McNeil, No. 2009-CA-0115 (Fla. 8th Cir. Ct. Sept. 3, 2009) (Order Transferring Case to Leon County). III. Disposition in the Lower Tribunal. Although in its Order of Transfer the Second Circuit mentioned that Mr. Baileys petition was originally filed in the Eighth Circuit Court, Union County, it does not affect the substance of the issues in this proceeding. 6

never revealed that in ordering the case transferred to the Second Circuit, the Eighth Circuit Court had already considered the fact that Mr. Baileys pro se petition mentioned seeking CM relief, but found that such was not an issue when it transferred the petition to Leon County, as Mr. Bailey never claimed an entitlement to such relief in his petition. Instead, based on this Courts decision in Kendrick v. McNeil, 6 So.3d 657 (Fla. 1st DCA 2009), the lower court ostensibly found that the bare mention of such relief amounted to an allegation that he was entitled to release from close management, requiring that it treat the petition as one seeking relief by writ of habeas corpus. (I.B. App. 142). Finally, in rendering the non-final Order of Transfer, the lower court inexplicably failed to serve a copy thereof on undersigned counsel who also represented him below, instead serving the order on Mr. Bailey himself. Given such, it is questionable whether at the time that it entered the non-final order transferring the case, the lower court was aware that Appellee was in fact represented by counsel. 2 SUMMARY OF THE ARGUMENT Mr. Bailey concedes that the lower court reversibly erred in ordering that his pro se petition for writ of mandamus again be transferred this time to the Twentieth Judicial Circuit, in and for Charlotte County, Florida, to resolve what It deserves mention that Mr. Bailey is no longer on CM or in Charlotte County, as he has been transferred by the Department to Okeechobee County, Florida. 7
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the court perceived as a CM claim. As Appellant emphasizes, it is undisputed that in his pro se mandamus petition, Mr. Bailey is seeking judicial review of the four (4) DRs issued to him at Union C.I. on June 5, 2009. It is likewise undisputed that jurisdiction and venue for such claims remains in the Second Judicial Circuit, in and for Leon County, Florida. Yet, the lower court failed to even mention this fundamental aspect of the case, instead electing to focus exclusively on the perceived CM claim. Significantly, Mr. Bailey is no longer on Close Management, or housed in Charlotte County, mooting any CM claim.. Unless reversed, the underlying order unnecessarily puts his mandamus petition on a statewide odyssey, visiting the dockets first in Union County, Leon County, Charlotte County, and who knows where next. Thus, reversal of the lower courts order effectively cancels the rest of this trip, allowing the Second Circuit Court to finally adjudicate Mr. Baileys DR claims without wasting and further judicial resources.

ARGUMENT ISSUE I Whether the Lower Tribunal Erred by Transferring the Petition for Writ Of Mandamus Challenging a Prison Disciplinary Action to a Venue Outside of Leon County, Where the Return of Forfeited Gain Time Will Not Entitle the Prisoner to Immediate Release From Department Custody. Appellee concedes that the lower court reversibly erred when, in the course of its sua sponte review of Mr. Baileys mandamus petition, it incorrectly read that petition in such a manner that permitted it to construe his petition as challenging the Departments administrative decision to place him in Close Management. As Appellant correctly points out, while it is true that Mr. Bailey stated on the first page of his pro se petition (near the title of the pleading) that he sought the immediate release from close management, he primarily sought expungement of four (4) DRs, based on his allegation that he was deprived of due process by the Department in the disciplinary proceedings that followed He also sought the reinstatement of the Departments forfeiture of his gain time that was based on the disciplinary infractions. To be sure, nowhere in the remainder of Mr. Baileys pro se petition did he ever assert a specific claim that he was entitled to the immediate release from Close Management, and he never plead either a factual or legal basis for such relief. Given the fact that Mr. Bailey never actually pled a claim which sought the 9

judicial review of the Departments action in placing him on CM, the lower court reversibly erred in construing his pro se petition in such a manner that ostensibly found such a claim to exist. This is especially so where, as Appellant argues, Mr. Bailey never asserted in his petition that the restoration by the Department of his gain-time that it forfeited as a result of the DRs would entitle him to immediate release. Respectfully, as the Department correctly alleges, the proper venue for Mr. Baileys DR claims remains in the Second Circuit, in and for Leon County, Florida. See Bush v. State, supra. Mr. Bailey joins Appellant in requesting that the lower courts Order of Transfer be reversed, with directions that the court conduct further proceedings on the DR claims properly before it. . ISSUE II Whether the Lower Tribunal Erred By Not Dismissing the Claim in The Petition Related to Appellees Placement on Close Management and Ruling on the Disciplinary Report Challenge Which Was Properly Before the Court. In its brief, the Department asserts that the trial court erred by not dismissing any Close Management claim from the petition that it perceived Appellee had made, without prejudice to his ability to properly re-file that claim in a habeas corpus action brought in the county where Appellee was being housed on CM. (See I.B., at 10-14). Severing the CM claim in such fashion would serve to 10

facilitate the courts resolution of the merits of Mr. Baileys remaining claims, in which he sought judicial review of the agencys administrative finding that he was guilty of committing the four alleged rule infractions alleged in the respective disciplinary reports. (I.B., 10-15). Appellant suggests that such a method for disposing of such mixed petitions (such as that here) in which a prisoner challenges the Departments action in both placing a prisoner on close management and in finding the prisoner guilty of committing disciplinary infractions is the best way to avoid the potential for absurd results, an example of which would occur if: [A]n entire petition challenging a DR is transferred from its proper venue in Leon County to the jurisdiction where the prisoner is incarcerated, then the prisoner is subsequently released from the CM assignment. (I.B. at 14). To be sure, such an absurd result is exactly what was achieved by the lower courts rendition of the non-final order appealed herein. In short, less than two months after the trial court rendered the underlying order transferring Mr. Baileys petition to Charlotte County, the Department released Mr. Bailey from that form of confinement, and transferred him to Okeechobee Correctional Institution, the Departments facility located in Okeechobee County. Thus, before the Twelfth Circuit Court in Charlotte County could reach the purported CM claim 11

the lower court envisioned in the underlying petition, that claim is now moot (if that claim ever existed to begin). Moreover, Mr. Baileys subsequent transfer from Charlotte County to Okeechobee County has achieved nothing short of such a jurisdictional quagmire that most experienced jurists are left scratching their heads in confusion and disbelief. Given such an unacceptable result, Appellee has no tenable alternative but to support Appellants argument in the Initial Brief: the trial court erred by not severing the CM claim from Appellees petition, or at the very least, dismissing that petition without prejudice to Appellees severance of that claim himself by amendment to the petition with, as Appellant suggests, leave of court to re-file that claim in the appropriate jurisdiction and venue. Accordingly, Appellee agrees that the lower court erred by failing to fashion an appropriate remedy resulting in the untangling of the purported CM claim from the remaining DR claims. As the DR claims were properly before the court, such a severance would have served judicial economy, and should be the accepted course of action in such mixed petition situations as that presented here.

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CONCLUSION Based on the underlying facts (as clarified herein) and the authorities cited by Appellant in the Initial Brief, Mr. Bailey concedes that the lower court reversibly erred in rendering the Order of Transfer on May 21, 2010. Although he mentioned obtaining the immediate release from close management, the body of his pro se petition never mentions a claim that the Department abused its discretion in making such a custody assignment. Instead, Mr. Bailey did seek judicial review of the Departments final action in finding him guilty of committing the rule infractions on June 5, 2009 that were alleged in the four (4) DRs for which he was found guilty. As such a claim (or claims) was properly before the Second Judicial Circuit, the Order of Transfer" should be reversed with directions that the court conduct further proceedings on the petition. _________________________________ BERNARD F. DALEY, JR. Florida Bar No. 263141 Attorney for Appellee The Law Office of Bernard F. Daley, P.A. 901 North Gadsden Street Tallahassee, Florida 32303 Telephone: (850)224-5823 Fax: (850)222-4045 Email: daleylaw@nettally.com

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Answer Brief of Appellee was furnished by United States mail to Maricruz Rahaman, Assistant Attorney General, Office of the Attorney General, The Capitol, PL-01, Tallahassee, Florida 32399-1050, on this 13th day of September, 2010. ___________________________________ BERNARD F. DALEY, JR. Attorney for Appellee CERTIFICATE OF TYPEFACE AND SIZE COMPLIANCE I hereby certify that the foregoing brief has been computer-generated in Times New Roman, 14 point type. ___________________________________ BERNARD F. DALEY, JR. Attorney for Appellee

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