Lowe v. FLA. PAROLE & PROBATION COMM. , 416 So. 2d 470 ( 1982 )

416 So. 2d 470 (1982)

Albert E. LOWE, Petitioner,
v.
FLORIDA PAROLE AND PROBATION COMMISSION, Respondent.

No. 82-860.

District Court of Appeal of Florida, Second District.

April 30, 1982.

Albert E. Lowe, pro se.

ORDER OF TRANSFER

PER CURIAM.

This case was transferred to this court from the Circuit Court of the Tenth Judicial Circuit in and for Polk County pursuant to the rationale of Daniels v. Florida Parole & Probation Comm'n, 401 So. 2d 1351 (Fla. 1st DCA 1981), holding that a determination by the Florida Parole & Probation Commission may be reviewed by the prisoner taking an administrative appeal to the appropriate district court of appeal. However, this court agreed with the rationale of Roberson v. Florida Parole & Probation Comm'n, 407 So. 2d 1044 (Fla. 3d DCA 1981) because of the express provision in the Florida Administrative Procedure Act stating that prisoners shall not be considered parties for the purposes of obtaining proceedings under the act. See, section 120.52(10)(d), Florida Statutes (1981). Therefore, the correct procedure for obtaining review of determinations by the Florida Parole & Probation Commission remains the filing of a petition for writ of mandamus or habeas corpus in the circuit court where incarcerated. See Wainwright v. Holley, 234 So. 2d 409 (Fla. 2d DCA 1970). Habeas would be the proper remedy if the prisoner contended that under his calculations his time had already expired. If it were contended that the commission's calculations were incorrect but that even under the prisoner's calculations he was not entitled to immediate release, mandamus would be the proper remedy.

Therefore, this petition for writ of mandamus is hereby transferred to the Circuit Court of the Tenth Judicial Circuit in and for Polk County for consideration and determination.

HOBSON, A.C.J., and OTT and RYDER, JJ., concur.