DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

July Term 2014

DALE BROWN,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D13-984

[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.

CIKLIN, J.

Dale Brown challenges the order dismissing the alternative writ of 

mandamus 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 remanded, 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 public expense.” Brown v. State, 93 So. 3d 1194, 1196 (Fla. 4th DCA 

2012). We directed the circuit court to issue an alternative writ of 
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mandamus but to deny the petition to the extent Brown requested free 

copies of documents that were not contained in his attorneys’ files or 

were not obtained at public expense.

On remand, in response to the circuit court’s alternative writ of 

mandamus, the Office of the Public Defender asserted that it contacted 

the appellate division that handled the appeal of the 1996 case 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 

occurred in 2007 . . . .” The assistant advised that any records stored 

with the Office of the Public Defender would have been destroyed seven 

years after the mandate issued. The attorney also stated that she 

reviewed the case management system and that the “Defendant was 

notified that the archive file box had previously been destroyed . . . .” 

Based on this response, the circuit court dismissed the alternative writ of 

mandamus.

We reverse because the response of the Office of the Public Defender 

did not refute Brown’s allegation that his attorneys possessed the 

documents. Instead, 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 records pursuant to office policy. 

If the attorney had made it clear that the records had in fact been 

destroyed, 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, this 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 Office of the Public Defender 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.

DAMOORGIAN, C.J., and FORST, J., concur.
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* * *

Not final until disposition of timely filed motion for rehearing.