        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT
                               July Term 2014

                             DALE BROWN,
                               Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                               No. 4D13-984

                           [December 3, 2014]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Paul L. Backman, Judge; L.T. Case No. 96-23376
CF10A.

   Dale Brown, Mayo, pro se.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale
Surber, Assistant Attorney General, West Palm Beach, for appellee.

CIKLIN, J.

   Dale Brown challenges the order dismissing the alternative writ of
mandamus issued by the trial court upon remand from this court in
Brown’s previous appeal. He raises three issues on appeal, only one of
which merits discussion. Because the response of the Office of the
Public Defender did not assert that it had actually searched for the
records requested by Brown and that they were no longer archived, we
reverse and remand for an evidentiary hearing.

    In 2011, Brown petitioned the circuit court for a writ of mandamus,
seeking records from the Office of the Public Defender regarding his 1996
felony case. The circuit court denied the petition without elaboration.
On appeal, this court reversed and remanded, finding that Brown’s
petition “set forth a prima facie case for relief on the ground that he has
a clearly established legal right to compel his trial attorneys to provide
him with transcripts and other record documents obtained on his behalf
at public expense.” Brown v. State, 93 So. 3d 1194, 1196 (Fla. 4th DCA
2012). We directed the circuit court to issue an alternative writ of
mandamus but to deny the petition to the extent Brown requested free
copies of documents that were not contained in his attorneys’ files or
were not obtained at public expense.

    On remand, in response to the circuit court’s alternative writ of
mandamus, the Office of the Public Defender asserted that it contacted
the appellate division that handled the appeal of the 1996 case and that
“[a]n assistant in that office advised the undersigned attorney that . . .
the records [in the direct appeal] would have been sent certified return
receipt to the Defendant approximately two weeks after the mandate
issued.” According to the attorney’s response, the assistant also advised
that the receipt “would have been destroyed in the record purge that
occurred in 2007 . . . .” The assistant advised that any records stored
with the Office of the Public Defender would have been destroyed seven
years after the mandate issued. The attorney also stated that she
reviewed the case management system and that the “Defendant was
notified that the archive file box had previously been destroyed . . . .”
Based on this response, the circuit court dismissed the alternative writ of
mandamus.

    We reverse because the response of the Office of the Public Defender
did not refute Brown’s allegation that his attorneys possessed the
documents. Instead, the response merely informed the court that the
Defendant had previously been advised the records he sought were
destroyed and that an unidentified assistant advised the public defender
as to what would have happened to the records pursuant to office policy.
If the attorney had made it clear that the records had in fact been
destroyed, this would have been a valid defense to the alternative writ of
mandamus and the court would have been on solid ground in denying
the petition. As it stands, this is not a case where there is no contested
issue of fact. See, e.g., Anderson v. Helm, 581 So. 2d 590, 591 (Fla. 2d
DCA 1990) (denying petition for writ of mandamus directed to appellate
counsel where counsel asserted that the case file was destroyed
pursuant to office policy).

   On remand, if the Office of the Public Defender produces evidence
that it does not in fact possess the documents which Brown is entitled to
have, the petition should be denied without prejudice to Brown seeking
to obtain them from other agencies that may possess them, i.e., the
clerk’s office or state attorney’s office.

   Reversed and remanded with instructions.

DAMOORGIAN, C.J., and FORST, J., concur.

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Not final until disposition of timely filed motion for rehearing.




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