SMALL v. CROSBY (2004)

District Court of Appeal of Florida,Fourth District.

Kevin SMALL, Petitioner, v. James CROSBY, Respondent.

No. 4D04-1614.

Decided: July 21, 2004

Kevin Small, South Bay, pro se. No response required for respondent.

Kevin Small seeks a writ of certiorari, challenging the lower court's refusal to rule on his mandamus petition because of his failure to pay a filing fee pursuant to section 57.085, Florida Statutes (2004). Small's mandamus petition alleged that the Department of Corrections miscalculated his tentative release date.

Pursuant to Schmidt v. Crusoe, 2003 WL 1987971, 878 So.2d 361 (Fla. May 1, 2003), Small is not required to comply with section 57.085, because the underlying action is a “collateral criminal proceeding” and, thus, exempt from section 57.085. See § 57.085(10), Fla. Stat. (2004). However, we note that Schmidt does require Small to comply with the general indigency statute, section 57.081, Florida Statutes. See Schmidt, 878 So.2d at 367 n. 7.

Accordingly, we grant Small's petition and quash the order of the trial court.

PER CURIAM.

GUNTHER, SHAHOOD and TAYLOR, JJ., concur.

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