### D ISTRICT 

### C OURT 

### O F 

### A PPEAL 

### O F 

### T HE 

### S TATE 

### O F 

### F LORIDA

F OURTH D ISTRICT July Term 2014

DALE BROWN
, Appellant,

v.

STATE OF FLORIDA
, Appellee

.

No. 4D 13

- 984

[ December 3, 2014 ]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County ; Paul L. Backman , Judge; L.T. Case No. 96

- 23376

CF10A

.

Dale Brown, Mayo, pro se.

Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.

C IKLIN
, J.

Dale Brown challenges the order dism issing the alternative writ of

m andamus issued by the trial court upon remand from this court in Brown’s previous appeal

. He raises three issues on appeal, only one of

which merits discussion. Because the response of the Office of the

Public Defender did not assert that it had actually searched for the records requested by Brown and that they were no longer archived, we reverse and remand for an evidentiary hearing.

In 2011, Brown petitioned the circuit court for a writ of mandamus, seeking records from the Office of the Public Defender regarding his 1996 felony case. The circuit court denied the petition without elaboration. On appeal, this court reversed and reman ded, finding that Brown’s petition “set forth a prima facie case for relief on the ground that he has a clearly established legal right to compel his trial attorneys to provide him with transcripts and other record documents obtained on his behalf at publi c expense.” Brown v. State , 93 So. 3d 1194, 1196 (Fla. 4th DCA 2012). We directed the circuit court to issue an alter native writ of2

mandamus but to deny the petition to the extent Brown requested free copies of documents that were not contained in his at torneys’ files or were not obtained at public expense

.

On remand, in response to the circuit court’s alterna tive writ of mandamus, the Office of the Public Defender asserted that it contacted

the appellate division that handled the appeal of the 1996 cas e and that “[a]n assistant in that office advised the undersigned attorney that

. . . the records [in the direct appeal] would have been sent certified return receipt to the Defendant approximately two weeks after the mandate

issued .” According to the attorney’s response, the assistant also advised that the receipt “would have been destroyed in the record purge that

occu rred in 2007 . . . .” T he assistant advised that any records stored with the Office of the Public Defender would have been destroyed s even years after the man date issued. The attorney also stated that s he reviewed the case management system and that the “Defendant was notified that the archive file box had previously been destroye d . . . .”

Based on this response, the circuit court dis missed the alternative writ of

mandamus.

W e reverse because the response of the Office of the Public Defender did not refute Brown’s allegation that his attorney s possessed the

documents. Instea d, the response merely informed the court that the Defendant had previously been advised the records he sought were destroyed and that an unidentified assistant advised the public defender

as to what would have happened to the record s pursuant to office policy. If the attorney had made it clear t hat the records had in fact been

des troyed , this would have been a valid defense to the alternative writ of

mandamus and the court would have been on solid ground in denying the petition. As it stands, t his is not a case where there is no contested

issue of fact. See, e.g.

, Anderson v. Helm , 581 So. 2d 590 , 591 (Fla. 2d DCA 1990) ( denying petition for writ of mandamus directed to appellate

counsel where counsel asserted that the case file was destroyed pursuant to office policy).

On remand, if the Offic e of the Public D efender produces evidence that it does not in fact possess the documents which Brown is entitled to

have , the petition should be denied without prejudice to Brown seeking to obtain them from other agencies that may possess them, i.e.

, the clerk’s office or state attorney’s office.

Reversed and remanded with instructions

.

D AMOORGIAN

, C.J., and F ORST

, J., concur.3 * * *

Not final until disposition of timely filed motion for rehearing.