BREGMAN v. STATE (2024)

Allen Bregman (“Bregman”) petitions for a writ of mandamus to compel the appointment of a circuit court judge to rule on his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We dismiss the petition.

Upon review of the amended petition for writ of mandamus,¹ Bregman asserts he placed his rule 3.850 motion into the hands of correctional officials for filing with the circuit court on February 26, 2024. Although Bregman argues the motion was provided to correctional officials on that date, it is unclear why the lower court docket does not show that any such motion was filed. In response to Bregman's inquiry with the trial court as to the status of his rule 3.850 motion, the trial court advised Bregman that his motion is moot because his case has had an assigned judge since January 2021, the lower court had no record of the February 2024 motion and Bregman had not filed any motion with the lower court clerk in connection with his case since July 2020. The trial court stated it understood Bregman mailed his rule 3.850 motion to the Clerk of the Eleventh Judicial Circuit and acknowledged that, for reasons unknown, the motion was not received or docketed. The trial court thus gave Bregman the opportunity to send a copy of the motion to the court and it would ensure the motion was docketed and addressed. Bregman did not do so.

Because Bregman has not yet provided the trial court with a copy of the subject postconviction motion, we dismiss the petition for writ of mandamus without prejudice to allow Bregman to file a copy of the postconviction motion with the trial court. See Fudge v. State, 147 So. 3d 1001, 1001 (Fla. 3d DCA 2014) (“Upon this Court's review, it appears the underlying Motion for Permission to File Motion for Belated Motion for Postconviction Relief was not docketed by the clerk of the trial court. Therefore, the petition for mandamus is dismissed without prejudice to Petitioner to file said motion with the trial court.”).

Petition dismissed.

FOOTNOTES

1.   Bregman initially filed an “Emergency Motion Requesting Court to Appoint a Judge to Hear and Rule on Pending 3.850 Motion” in the Florida Supreme Court. The Florida Supreme Court treated the motion as a petition for writ of mandamus and gave Bregman the opportunity file an amended mandamus petition that complied with Florida Rule of Appellate Procedure 9.100. Upon submitting his amended petition for mandamus, the Florida Supreme Court then transferred the amended petition to this Court pursuant to Harvard v. Singletary, 733 So. 2d 1020 (Fla. 1999).

GORDO, J.