McCarthy v. Florida Parole Commission , 2005 Fla. App. LEXIS 35 ( 2005 )

889 So. 2d 1018 (2005)

William McCARTHY, Petitioner,
v.
FLORIDA PAROLE COMMISSION, Respondent.

No. 1D04-2829.

District Court of Appeal of Florida, First District.

January 5, 2005.

William McCarthy, petitioner, pro se.

Kim M. Fluharty, General Counsel, and Bradley R. Bischoff, Assistant General Counsel, Florida Parole Commission, for respondent.

PER CURIAM.

As the Parole Commission concedes, the circuit court erred in denying McCarthy's petition for writ of habeas corpus prior to expiration of the time afforded for him to reply to the Commission's response. See Smith v. Florida Department of Corrections, 882 So. 2d 1090 (Fla. 1st DCA 2004); cf., Bard v. Wolson, 687 So. 2d 254 (Fla. 1st DCA 1997). We note that McCarthy tendered a reply contemporaneously with the filing of his motion for rehearing below. Accordingly, the circuit court's order is quashed and this cause is remanded with directions to reconsider the matter in light of McCarthy's reply. Based on this disposition, we decline to address the other arguments presented by petitioner, as those matters should be considered in the first instance by the lower tribunal.

ALLEN, VAN NORTWICK and PADOVANO, JJ., concur.