Pope v. State , 898 So. 2d 253 ( 2005 )

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898 So. 2d 253 (2005)
Anthony Evans POPE, Appellant,
v.
The STATE of Florida, Appellee.
No. 3D04-2237.
District Court of Appeal of Florida, Third District.
March 16, 2005.
Anthony Evans Pope, in proper person.

Sara K. Dyehouse, Assistant General Counsel (Tallahassee), for appellee.

Before LEVY, C.J., RAMIREZ and SUAREZ, JJ.

SUAREZ, J.

Anthony Evans Pope appeals the denial of his Emergency Petition for Writ of Habeas Corpus Ad Testificandum. The petition alleges that the appellant is being illegally detained by the Department of Corrections beyond his maximum release date.

When Appellant filed his petition with the trial court, he failed to allege, or prove, that he had exhausted any of the administrative procedures available to him prior to filing the petition. The prerequisite to the issuance of an extraordinary writ is exhaustion of all administrative remedies. See Reed v. Moore, 768 So. 2d 479 (Fla. 2d DCA 2000). The trial court, without addressing the merits, summarily and correctly denied the appellant's petition, without prejudice, finding the petition facially insufficient for failing to allege the appellant had exhausted all of the administrative remedies.

*254 Appellant did not address the issue of exhaustion of administrative remedies in his Initial Brief. In his Reply Brief dated December 27, 2004, after the issue was raised by the State of Florida in the Answer Brief, the Appellant informed the court for the first time that, in fact, Appellant had attempted, prior to filing the petition in the trial court, to exhaust his administrative remedies. (Appellant attaches to his Reply Brief, copies of documents which he alleges show that he attempted to exhaust, or did exhaust, his administrative remedies.) The trial court was never informed by Appellant that he did attempt to exhaust his administrative remedies. Therefore, the trial court was never in a position to determine whether or not the administrative remedies had been exhausted and, if so, to then address the petition on its merits. Once that process is completed, an appeal, if necessary, may be appropriate.

Based on the above, we affirm the trial court's decision, without prejudice to Pope's right to file a new petition, upon the exhaustion of all administrative remedies available to him.