Parent v. McNeil , 997 So. 2d 512 ( 2008 )

997 So. 2d 512 (2008)

Richard T. PARENT, Petitioner,
v.
Walter A. McNEIL, Secretary, Florida Department of Corrections, Respondent.

No. 1D08-1483.

District Court of Appeal of Florida, First District.

December 24, 2008.

Richard T. Parent, pro se, Petitioner.

Bill McCollum, Attorney General, and Alexandria E. Walters, Assistant Attorney General, Tallahassee, for Respondent.

PER CURIAM.

Petitioner, an inmate, seeks certiorari review of an order of the circuit court which denied a petition for writ of mandamus. We grant the petition.

Petitioner was observed using a computer to access a personal e-mail account. The Department of Corrections (DOC) issued a disciplinary report and charged petitioner with possession or use of a cellular telephone or any other type of wireless communication device. However, the evidence presented was insufficient to prove that a wireless device was used. DOC failed to refute the factual allegation that the computer petitioner used to access the e-mail account was a hardwired desktop model that was plugged into the wall and used a DSL connection to access the Internet. DOC failed to satisfy the evidentiary standard of Superintendent v. Hill, 472 U.S. 445, 105 S. Ct. 2768, 86 L. Ed. 2d 356 (1985).

Accordingly, the petition for writ of certiorari is granted, the order of the circuit court is quashed and the cause remanded for further proceedings.

BROWNING, C.J., WOLF and BENTON, JJ., concur.