FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Pinellas County; Anthony
Lee Anthony, Jr., pro se.
Moody, Attorney General, Tallahassee, and Jeffrey H. Siegal,
Assistant Attorney General, Tampa, for Appellee.
Lee Anthony, Jr., seeks review of the circuit court's
order dismissing his petition for writ of mandamus. Mr.
Anthony petitioned the circuit court to compel Bob Dillinger,
the Public Defender for the Sixth Judicial Circuit, to
provide him with a copy of a report from the Department of
Justice (DOJ) for the purpose of including this report in his
motion for postconviction relief as newly discovered evidence
under Florida Rule of Criminal Procedure 3.850. The circuit
court dismissed the petition finding it facially insufficient
where Mr. Anthony failed to acknowledge the obligation to pay
for copying costs. Because Mr. Anthony stated a facially
sufficient petition for writ of mandamus, which established a
prima facie case of entitlement to receive a copy of the DOJ
report, we reverse and remand for further proceedings.
Anthony was formerly represented by an assistant public
defender when he entered into a plea agreement on kidnapping
charges. In April of 2015, after his plea, he received a
letter from the Public Defender informing him of a report
received from the DOJ regarding "improper testimony
involving hair samples," related to his case. The Public
Defender's letter stated he had reviewed Mr.
Anthony's case and determined it was highly unlikely the
improper testimony would have impacted the outcome of Mr.
Anthony's case. Upon receiving the letter, Mr. Anthony
made several requests for a copy of the DOJ report from the
Public Defender, but to no avail. Thereafter, Mr. Anthony
filed the instant petition for writ of mandamus requesting
the circuit court compel the Public Defender to provide him
with a copy of the DOJ report so that Mr. Anthony may use the
letter as support for his motion for postconviction relief
based upon newly discovered evidence. The circuit court dismissed
Mr. Anthony's petition as facially insufficient because
the petition did not include an acknowledgment by Mr. Anthony
of his obligation to pay the copying costs associated with
the DOJ report.
circuit court's dismissal of Mr. Anthony's petition
as facially insufficient is subject to de novo review.
Asay v. State, 210 So.3d 1, 22 (Fla. 2016) (noting a
trial court's ruling on a pure question of law is subject
to de novo review); see also Walker v. Ellis, 989
So.2d 1250, 1251 (Fla. 1st DCA 2008) (order granting motion
to dismiss a mandamus petition is reviewed de novo) (citing
Mazer v. Orange County, 811 So.2d 857, 858 (Fla. 5th
DCA 2002)); cf. Brown v. State, 93 So.3d 1194, 1195
(Fla. 4th DCA 2012) (trial court's decision in denying
petition for writ of mandamus is reviewed under the abuse of
discretion standard of review) (citing Ilkhani v.
Lamberti, 50 So.3d 1180, 1181 (Fla. 4th DCA 2010)).
Mandamus is an appropriate vehicle for compelling an official
to perform lawful duties. Pearce v. Sheffey, 647
So.2d 333, 333 (Fla. 2d DCA 1994). A public defender being a
court appointed lawyer satisfies the requirement of an
"official." Id. A petitioner seeking a
writ of mandamus is entitled to relief upon demonstrating
"a clear legal right to the performance by the
respondent of the particular duty in question."
Fasenmyer v. Wainwright, 230 So.2d 129, 130 (Fla.
1969). To be facially sufficient, a petition for writ of
mandamus must also show the petitioner has no adequate remedy
at law. Davis v. State, 861 So.2d 1214, 1216 (Fla.
2d DCA 2003). Before seeking a writ of mandamus to compel a
public defender to produce records, a defendant must first
request the records and be denied. Zito v. State,
990 So.2d 1257, 1257 (Fla. 2d DCA 2008).
defendant, when represented by a public defender, is entitled
to free copies of his or her own records or property,
including copies of all trial and hearing transcripts,
motions, State discovery presented to defense counsel, and
any other documents that were otherwise prepared at public
expense. Smith v. State, 889 So.2d 1009, 1010 (Fla.
3d DCA 2004) (citing Potts v. State, 869 So.2d 1223,
1224-25 (Fla. 2d DCA 2004)). On the other hand, a defendant
is not entitled to free copies of documents in the possession
of the public defender if the documents were not obtained at
public expense. In such case, the defendant must arrange to
reimburse his former attorney for the cost of these
documents. Brown, 93 So.3d at 1196 n.1 (citing
Raymond v. State, 31 So.3d 946, 947 (Fla. 2d DCA
2010)). The circuit court dismissed Mr. Anthony's
petition as facially insufficient because it did not include
an affirmative acknowledgment by Mr. Anthony of his
obligation to pay for copying costs. In support of the
dismissal, the circuit court relied on Farmer v.
State, 927 So.2d 1075, 1076 (Fla. 2d DCA 2006). However,
Farmer is factually distinguishable from this case
where the defendant in Farmer made a public records
request to the State Attorney's Office under chapter 119,
Florida Statutes (2004). Id. Here, Mr. Anthony seeks
a copy of the DOJ report provided to his court-appointed
counsel. Moreover, Farmer does not stand for the
proposition that a defendant must acknowledge an obligation
to pay for copying costs before the petition can be deemed
facially sufficient. The court in Farmer merely
noted the defendant had acknowledged his obligation to make
payment for the copying costs, which is a requirement under
chapter 119. See § 119.07(4); Farmer,
927 So.2d at 1076.
review of Florida law governing petitions for writs of
mandamus reveals no requirement that the petitioner
affirmatively acknowledge an obligation to pay for copying
costs in order to state a valid claim for mandamus relief. In
fact, our court has held otherwise. See Roland v.
State, 120 So.3d 103, 104 (Fla. 2d DCA 2013) (holding
the circuit court erred in dismissing a petition for writ of
mandamus as facially insufficient for failing to acknowledge
the legal obligation to pay for costs associated with
providing the documents); Smith v. State, 696 So.2d
814, 816 (Fla. 2d DCA 1997) (rejecting the public
defender's argument that the defendant was not entitled
to free copies of the requested records; finding the
defendant did not seek free copies of the records in his
petition, which did not specifically address whether he would
pay for copies and holding the petition stated a prima facie
case for mandamus relief).
Mr. Anthony is obligated to pay for the DOJ report or whether
he is entitled to it free of charge cannot be discerned from
the Public Defender's letter, and so we do not address
this issue as it involves a question of fact to be determined
by the circuit court after the Public Defender
responds to the alternative writ. See Radford v.
Brock, 914 So.2d 1066, 1068 (Fla. 2d DCA 2005) (noting
the circuit court must resolve disputed factual issues raised
in the petition and response to the alternative writ based
upon the evidence submitted by the parties).
Mr. Anthony stated a facially sufficient petition for writ of
mandamus, which established a prima facie case of entitlement
to receive a copy of the DOJ report. Accordingly, we reverse
the circuit court's order dismissing the petition for
writ of mandamus. On remand, the circuit court shall issue an
alternative writ in mandamus directing the Public Defender to
respond to the petition. In the event the circuit court
determines that Mr. Anthony is entitled to the DOJ report,
the circuit court, in granting the petition, shall also
determine whether Mr. Anthony is entitled to a free copy of
the DOJ report or whether the writ shall be conditioned upon
payment of the copying costs. See Bostic v. State,
875 So.2d 785, 786 (Fla. 2d DCA 2004). Reversed and remanded
CASANUEVA and ...