Opinion
Case No. 4D04-1614.
Opinion filed July 21, 2004.
Petition for writ of certiorari to the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County, Kenneth D. Stern, Judge, L.T. Case No. CA 03 10357 XXOCAE.
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, 28 Fla. L. Weekly S367, 2003 WL 1987971, ___ So.2d ___ (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, 28 Fla. L. Weekly at S369 n. 7, ___ So.2d ___ n. 7.
Accordingly, we grant Small's petition and quash the order of the trial court.
GUNTHER, SHAHOOD and TAYLOR, JJ., concur.
NOT FINAL UNTIL DISPOSITION OF ANY TIMELY FILED MOTION FOR REHEARING.