Degregorio v. State
205 So. 3d 841
| Fla. Dist. Ct. App. | 2016Background
- Appellant Joseph DeGregorio sought an order compelling his court-appointed appellate attorney to return a 24-volume appellate record after the conclusion of his direct appeal.
- DeGregorio filed a petition for writ of mandamus in circuit court after initially moving for return of the record. Mandamus was the proper vehicle because it seeks to compel counsel to perform a lawful duty.
- Appellate counsel filed an unsworn response saying delays resulted from receiving documents piecemeal and an office move that scattered papers; counsel stated he was mailing the extensive record the same day.
- DeGregorio replied that volume four and the digital scanned copy were missing from what he received.
- The circuit court denied the petition, finding counsel had sent all records in his possession; DeGregorio appealed, arguing the court should have held an evidentiary hearing because factual dispute remained.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether mandamus is proper to compel appointed counsel to return appellate record | Mandamus is appropriate to force counsel to perform duty of returning client's property and transcripts | Counsel implicitly conceded he would send records and thus no further relief needed | Mandamus is the proper remedy to compel counsel to return records |
| Whether the circuit court could decide the petition on unsworn pleadings | DeGregorio argued the court must resolve factual disputes with evidence/hearing because he alleged missing materials | Circuit court relied on counsel's unsworn response that he had sent all records | Court held factual dispute existed and unsworn pleadings insufficient; evidentiary resolution required |
| Whether counsel retained portions of the record after mailing | DeGregorio asserted specific items (vol. 4 and digital copy) were missing from what he received | Counsel claimed he mailed the complete record despite earlier piecemeal receipt and scattering during move | Court found counsel’s admissions supported the possibility he still possessed records; issue of fact remained |
| Proper remedy after dispute remains unresolved | DeGregorio sought reversal and remand for evidentiary hearing or order compelling return | State/counsel argued denial was appropriate based on representations | Court reversed and remanded with instructions to resolve factual issues (e.g., by hearing or evidence) |
Key Cases Cited
- Potts v. State, 869 So. 2d 1223 (Fla. 2d DCA 2004) (mandamus can compel court-appointed lawyer to perform lawful duties)
- Raymond v. State, 31 So. 3d 946 (Fla. 2d DCA 2010) (attorney must return client's personal property and publicly funded transcripts)
- Radford v. Brock, 914 So. 2d 1066 (Fla. 2d DCA 2005) (if petition and answer raise disputed facts, trial court must resolve them on evidence)
- Perez v. State, 980 So. 2d 1205 (Fla. 3d DCA 2008) (trial court should resolve factual disputes on proper evidence, including affidavits)
- Williams v. State, 163 So. 3d 618 (Fla. 4th DCA 2015) (reversing denial of mandamus where response failed to resolve factual issues)
- Clay Cty. Educ. Ass'n v. Clay Cty. Sch. Bd., 144 So. 3d 708 (Fla. 1st DCA 2014) (to obtain mandamus, must allege violation of clear legal right and indisputable duty)
- Polley v. Gardner, 98 So. 3d 648 (Fla. 1st DCA 2012) (same standard for mandamus)