       Third District Court of Appeal
                               State of Florida

                        Opinion filed September 20, 2017.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D17-1907
                         Lower Tribunal No. 93-29380
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                                Eugene Allen,
                                    Petitioner,

                                        vs.

                            The State of Florida,
                                   Respondent.


     On Petition for Writ of Certiorari from the Circuit Court for Miami-Dade
County, Michael A. Hanzman, Judge.

     Eugene Allen, in proper person.

     Pamela Jo Bondi, Attorney General, for respondent.

Before LAGOA, EMAS and SCALES, JJ.

     SCALES, J.
        Eugene Allen files this petition for writ of certiorari seeking to compel the

Department of Corrections (“DOC”) to restore gain time he previously forfeited

due to violation of his conditional release. We deny the writ without prejudice to

Allen obtaining a final order from DOC from which Allen can seek mandamus

relief in the circuit court.

        “The proper remedy to compel an award of gain time is a petition for writ of

mandamus filed in the circuit court after administrative procedures through DOC

have been exhausted.” Duggan v. Dep’t of Corrections, 665 So. 2d 1152, 1153

(Fla. 5th DCA 1996) (emphasis added). While not entirely clear on the scant

record before us, it appears the trial court found that it was without jurisdiction to

consider, and therefore denied, Allen’s petition for writ of mandamus because

Allen did not exhaust DOC administrative procedures prior to seeking relief in the

circuit court. Specifically, the only thing in the record before us is an unsigned

memorandum—purportedly from someone working at the Bureau of Classification

Management for DOC to Everglades Correctional Institution, where Allen is

currently incarcerated—which states that Allen is ineligible for restoration of gain

time.

        While Allen may have initiated an administrative remedy, it does not appear

to us that DOC has taken final action in this matter. Therefore, it appears the trial

court properly denied Allen’s mandamus petition because it lacked jurisdiction.



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Similarly we deny Allen’s petition for writ of certiorari without prejudice so that

Allen may exhaust his administrative remedies and, if unsuccessful, file a petition

for writ of mandamus in the circuit court.

      Petition denied.




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