Mehl v. Tucker

71 So.3d 248 (2011)

Philip MEHL, Petitioner,
v.
Kenneth S. TUCKER, Secretary, Department of Corrections, Respondent.

No. 2D11-729.

District Court of Appeal of Florida, Second District.

October 12, 2011.

Philip Mehl, pro se.

Jennifer Parker, General Counsel, and Beverly Bruster, Assistant General Counsel, Tallahassee, for Appellee.

ALTENBERND, Judge.

Philip Mehl seeks review by certiorari of a circuit court order denying his petition for writ of habeas corpus. Mr. Mehl claims that the Department of Corrections has not properly calculated the jail credit that the sentencing court in Martin County awarded him. He filed his petition for writ of habeas corpus in the circuit where he was then confined without exhausting all of his administrative remedies with the Department. The circuit court dismissed the petition as premature, which is consistent with Pope v. State, 898 So.2d 253 (Fla. 3d DCA 2005) (upholding trial court's dismissal of habeas petition where inmate failed to allege exhaustion of administrative remedies).

During the pendency of this certiorari proceeding, the supreme court disapproved Pope, ruling that a court may not sua sponte dismiss a petition for writ of habeas corpus on the ground that the inmate failed to allege administrative exhaustion. Henry v. Santana, 62 So.3d 1122, 1129 (Fla.2011), aff'g Santana v. Henry, 12 So.3d 843 (Fla. 1st DCA 2009). During the pendency of this proceeding, Mr. Mehl was also transferred to another correctional facility outside both the circuit in which he filed his petition and the jurisdiction of this court.

Under these circumstances, we deny his petition for writ of certiorari. This denial does not prevent Mr. Mehl from filing another petition in the circuit where he is currently confined, which petition will be governed by the supreme court's decision in Henry.

Petition denied.

KELLY and CRENSHAW, JJ., Concur.