ASHE v. SINGLETARY (1997)

District Court of Appeal of Florida,First District.

Richard C. ASHE, Appellant, v. Harry K. SINGLETARY, the State of Florida, Department of Corrections, Appellee.

No. 96-1336.

Decided: December 15, 1997

Appellant, pro se. No appearance for Appellee.

This is an appeal by an inmate from a final order summarily denying a petition for writ of mandamus. Because the petition was sufficient to state a prima facie ground for relief, we reverse for the entry of an order to show cause and subsequent proceedings on the merits. The Department initiated a disciplinary proceeding against the inmate alleging that he committed sexual battery on a nurse. However, the facts alleged in the charging document appear to support only the lesser offense of battery. Following the disciplinary hearing, the Department found the inmate guilty of sexual battery and revoked 1040 days gain time. Because a simple battery would not justify the same loss of gain time, and because the inmate's claim appears on its face to be meritorious, the petition should not have been summarily denied.

Reversed.

PER CURIAM.

MICKLE, LAWRENCE and PADOVANO, JJ., concur.

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