Murray v. State , 2016 Fla. App. LEXIS 4199 ( 2016 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
WAYNE MURRAY, )
)
Appellant, )
)
v. ) Case No. 2D15-3158
)
STATE OF FLORIDA, )
)
Appellee. )
___________________________________)
Opinion filed March 18, 2016.
Appeal pursuant to Fla. R. App. P.
9.141(b)(2) from the Circuit Court for
Pinellas County; Cynthia J. Newton,
Judge.
Wayne Murray, pro se.
No appearance by Appellee.
PER CURIAM.
Wayne Murray appeals the order denying his motion for an order to affirm
his visitation rights with his son. We affirm.
Mr. Murray is incarcerated by the Department of Corrections (DOC) for his
convictions of lewd and lascivious battery and lewd and lascivious molestation. He filed
in the postconviction court a motion for an order to affirm visitation with his son, alleging
that although he was previously afforded visitation with his minor son, the management
personnel at the correctional facility where he is incarcerated changed in June 2014,
and the new management has not approved this visitation. Mr. Murray alleged that he
filed a request for visitation with the DOC, and it responded that "visitation will only be
approved upon a court order." Mr. Murray attached to his motion what appears to be a
portion of a 2007 final judgment of dissolution of marriage that awards him quarterly
visitation with his son at his place of incarceration and a DOC response to a grievance
that he filed regarding his lack of visitation with his son. The response states that the
visitation will not be approved until "a written court order is received from the judge
approving such visitation." The response also informed Mr. Murray of the procedure for
seeking administrative remedy or an appeal of that decision.
The postconviction court denied the motion to affirm visitation, finding that
regulation of prison visitation lies wholly within the authority of the DOC. The
postconviction court cited Singletary v. Carpenter, 705 So. 2d 110, 111 (Fla. 2d DCA
1998), in which this court held that criminal trial judges do not have the authority to
dictate to the DOC the terms and conditions under which inmates may visit with guests
at the prisons confining them because "regulation of prison visitation lies wholly within
the authority of the DOC." The opinion explained that section 944.09(1)(n), Florida
Statutes (Supp. 1996), which appears to give circuit court judges authority to order
visitation in the DOC, is intended for domestic and juvenile courts that have authority
over parental visitation and the welfare of the children involved. Id. at 111-12.1
The postconviction court did not err in finding that it did not have the
authority to enforce Mr. Murray's visitation or to direct the DOC to allow visitation.
1
Section 944.09(1)(n) is substantively the same today.
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Moreover, assuming that the portion of the 2007 final judgment of dissolution of
marriage that Mr. Murray attached to his motion is a true and correct copy of the final
judgment, he has previously obtained an order from a judge permitting visitation. Mr.
Murray did not allege in his motion that he provided this order to the DOC or that he had
exhausted his administrative remedies within the DOC. Accordingly, even if the
postconviction court had the authority to issue the order Mr. Murray seeks, Mr. Murray
failed to show entitlement to any action by the circuit court. See Moore v. Peavey, 729
So. 2d 494, 495 (Fla. 5th DCA 1999) (quashing an order from a criminal court that
awarded an inmate convicted of sexual battery on a child visitation with his minor son
and directing the petitioner to "first exhaust his administrative remedies within DOC and
then, if necessary, file a petition for writ of mandamus in the circuit court").
We affirm without prejudice to any right Mr. Murray may have to seek
visitation with his son.
Affirmed.
CASANUEVA, CRENSHAW, and BADALAMENTI, JJ., Concur.
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