Forbes v. Crosby , 866 So. 2d 198 ( 2004 )

866 So. 2d 198 (2004)

Everitte L. FORBES, Petitioner,
v.
James V. CROSBY, Jr., Secretary, Department of Corrections, Respondent.

No. 1D03-3179.

District Court of Appeal of Florida, First District.

February 24, 2004.

Everitte L. Forbes, pro se, petitioner.

Charlie Crist, Attorney General, and Sean F. Callaghan, Assistant Attorney General, Tallahassee, for respondent.

PER CURIAM.

A Department of Corrections disciplinary team found Everitte L. Forbes guilty of lying to staff and imposed a penalty of forfeiture of 60 days of gain time. After exhausting his administrative remedies, Forbes filed a petition for writ of mandamus in the Circuit Court for Holmes County. A show cause order issued and, after considering the department's response, the mandamus petition was denied. Forbes seeks review of that decision by petition for writ of certiorari and we have jurisdiction in accordance with Sheley v. Florida Parole Comm'n, 720 So. 2d 216 (Fla.1998).

In his certiorari petition, Forbes contends that the circuit court erred in acting on his mandamus petition without affording him time to file his reply to the department's response. Bard v. Wolson, 687 So. 2d 254 (Fla. 1st DCA 1996). The Department has moved to relinquish jurisdiction to the circuit court, essentially agreeing with petitioner's argument on this point. Rather than relinquishing jurisdiction, we find that the appropriate disposition in this circumstance is to grant the petition, quash the order of the circuit court, and remand the cause to the circuit court for further proceedings. See Stacey v. Department of Professional Regulation, Board of Nursing Home Administrators, 547 So. 2d 241 (Fla. 1st DCA 1989). In light of the granting of relief on this ground, we decline to address petitioner's other point regarding the correctness of the circuit court's decision at this time.

PETITION FOR WRIT OF CERTIORARI GRANTED.

WEBSTER, LEWIS and HAWKES, JJ., concur.