                                      IN THE DISTRICT COURT OF APPEAL
                                      FIRST DISTRICT, STATE OF FLORIDA

KEVIN M. TRACY,                       NOT FINAL UNTIL TIME EXPIRES TO
                                      FILE MOTION FOR REHEARING AND
      Appellant,                      DISPOSITION THEREOF IF FILED

v.                                    CASE NO. 1D15-5829

STATE OF FLORIDA,

      Appellee.

_____________________________/

Opinion filed May 31, 2017.

An appeal from the Circuit Court for Escambia County.
Ross M. Goodman, Judge.

Kevin M. Tracy, pro se, Appellant.

Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney
General, Tallahassee, for Appellee.




PER CURIAM.

      Kevin Tracy appeals the dismissal of his petition for writ of mandamus

pertaining to his records request. Because the proper procedures were not followed

and because factual disputes remain, we reverse.
      In his petition, Mr. Tracy requests documents related to the chain of custody

of any deadly weapon used as evidence in his case. The Escambia County Sheriff’s

Office responded by providing the appropriate evidence card. Mr. Tracy asserts

additional documentation is available. The trial court denied Mr. Tracy’s petition

without issuing an alternative writ of mandamus to the respondent requiring him to

show cause why the petition should not be granted. The trial court held, “The records

attached to the Petition show that the knife or knives were destroyed. Thus, there is

nothing that the Court can order anyone to produce.”

      Although Mr. Tracy may be mistaken that additional information is available

related to his request, his petition states a facially sufficient claim. If a petition is

facially sufficient, the court must issue an alternative writ of mandamus requiring

the respondent to show cause why the petition should not be granted. Radford v.

Brock, 914 So. 2d 1066, 1068 (Fla. 2d DCA 2005). If the petition and answer to the

alternative raise disputed issues, the trial court must resolve those issues upon

evidence submitted by the parties. Id. A trial court errs in denying a petition unless

there is sworn evidence refuting the petitioner’s allegations. Parish v. State, 59 So.

3d 1229, 1230 (Fla. 4th DCA 2011).

      Here, Mr. Tracy filed a facially sufficient petition for writ of mandamus.

However, the trial court failed to issue an alternative writ of mandamus. In addition,

the record contains no sworn statements indicating Mr. Tracy has been provided all

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documents in the State’s possession. 1 Thus, factual disputes remain. Therefore, the

trial court erred in denying Mr. Tracy’s petition. If on remand, the State fails to

provide sworn evidence that all available information has been provided, the trial

court must conduct an evidentiary hearing on the issue prior to denying the

claim. See Ferrier v. Pub. Defender’s Office, 2d Jud. Cir. of Fla., 171 So. 3d 744

(Fla. 1st DCA 2015); Clay Cnty. Educ. Ass’n v. Clay Cnty. Sch. Bd., 144 So. 3d 708

(Fla. 1st DCA 2014); Parish, 59 So. 3d 1229; Johnson v. State, 872 So. 2d 387 (Fla.

4th DCA 2004).

      Accordingly, we reverse the order dismissing the petition and remand for

further proceedings consistent with this opinion.

      REVERSED and REMANDED.

WOLF, MAKAR, and M.K. THOMAS, JJ., CONCUR.




1
  The State was identified as the Respondent, Defendant or Appellee by the trial
court in its final order. The Appellant/Petitioner requested documents from the
Escambia County Sheriff’s Office records custodian. Any subsequent orders should
be directed to the Sheriff’s Office. However, for consistency purposes the State is
referred to as the Appellee.
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