Gay v. State

697 So. 2d 179 (1997)

John Davenport GAY, Appellant,
v.
STATE of Florida, Appellee.

No. 96-4969.

District Court of Appeal of Florida, First District.

July 7, 1997.

John Davenport Gay, pro se.

Robert A. Butterworth, Attorney General; Sonya Roebuck Horbelt, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

John Davenport Gay appeals an order denying his motion to compel release of his criminal defense records. We conclude that appellant's "Amended Motion to Compel" the release of his records allegedly held by the Office of the Public Defender stated a preliminary basis for mandamus relief. See Fla. R. Civ. P. 1.630(d). Accordingly, the trial court should have issued an alternative writ, that is, an order directed to the public defender to show cause why the requested relief should not be granted. Id.; see Holcomb v. Department of Corrections, 609 So. 2d 751, 753 (Fla. 1st DCA 1992).

Below the public defender objected to the appellant's motion, but, rather than filing a response, see Florida Rule of Civil Procedure 1.630(e), the public defender requested a hearing. Thereafter, the trial court held a hearing to resolve the disputes between the parties, see Holcomb, 609 So.2d at 753, but appellant neither was notified of nor given an opportunity to participate in the hearing. Accordingly, we are required to reverse and remand with directions to the trial court and the parties to comply with rule 1.630. See Holcomb, 609 So.2d at 753; see also Smith v. State, 696 So. 2d 814 (Fla. 2d DCA 1997)(explaining the procedure for disclosure of criminal records under Chapter 119, Florida Statutes). Our opinion here in no way addresses the merits of appellant's motion.

JOANOS, WOLF and VAN NORTWICK, JJ., concur.