IN THE DISTRICT COURT OF APPEAL
                                           FIRST DISTRICT, STATE OF FLORIDA

WILLIAM T. MORRISON, JR.,                  NOT FINAL UNTIL TIME EXPIRES TO
                                           FILE MOTION FOR REHEARING AND
      Appellant,                           DISPOSITION THEREOF IF FILED.

v.                                         CASE NO. 1D13-5556

FLORIDA DEPARTMENT OF
CORRECTIONS,

     Appellee.
_______________________________/

Opinion filed January 2, 2015.

An appeal from an order of the Circuit Court for Leon County.
Terry P. Lewis, Judge.

William T. Morrison, Jr., pro se, Appellant.

Pamela Jo Bondi, Attorney General, and Shirley Wilson Durham, Assistant
Attorney General, Tallahassee, for Appellee.




PER CURIAM.

      Appellant William T. Morrison, an inmate in the custody of the Florida

Department of Corrections (FDOC), seeks review of an order of the Leon County
Circuit Court which dismissed his petition for writ of mandamus as moot. We

agree that the order of dismissal was premature, and we therefore reverse that order

and remand this matter to the circuit court for further proceedings.

      Morrison filed four sets of inmate grievances which complained that the

FDOC was not processing his inmate mail appropriately. The first grievance

claimed that mail that Morrison received from a reporter from the Kansas City Star

was not treated as privileged pursuant to Florida Administrative Code Rule 33-

210.103. The second grievance disputed the FDOC’s processing of Morrison’s

mail from the Florida Bar and claimed that such mail was also privileged under the

same rule.    The third grievance complained that FDOC was not properly

processing privileged mail from a news outlet called “Prison Legal News.” The

fourth and final set of grievances alleged that the FDOC was continually failing to

treat correspondence from a private attorney, Lance T. Weber, as legal mail

pursuant to Florida Administrative Code Rule 33-210.102.

      The initial petition for writ of mandamus filed on March 18, 2010, sought

review only of the denials of the grievances relating to the correspondence from

the Kansas City Star and the Florida Bar. The appellant, however, moved to

supplement the petition on October 6, 2011, to review the grievances relating to the

correspondence from Prison Legal News, and that motion was granted via order of

October 27, 2011. Prior to the lower tribunal entering a dispositive ruling on the
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petition and supplemental petition, the petitioner filed a second motion to

supplement on August 22, 2012, seeking to include the grievances regarding

correspondence from Attorney Weber. No ruling was ever entered on that motion.

      Attached to the August 22, 2012, motion to supplement, Morrison included

administrative grievances which complained that his mail from Attorney Weber

was not properly processed pursuant to Rule 33-210.102. He attached copies of

the envelopes from Attorney Weber, which were clearly marked on their face

“SPECIAL MAIL – LEGAL MAIL,” “TO BE OPENED ONLY IN PRESENCE

OF ADDRESSEE,” and “CONFIDENTIAL ATTORNEY-CLIENT WORK

PRODUCT.” The envelope bears a handwritten note, appearing to be from FDOC

staff, which reads “We called these people & let them know this is NOT

considered legal mail – only info & questionair [sic] material.” Morrison also

attached an affidavit filed by Attorney Weber, which asserted that the letter in

question was an “investigatory letter” concerning an active case for which Mr.

Morrison is a potential witness.      The petitioner also attached copies of his

grievances and denials relating to the processing of this mail.

      Via order of October 21, 2013, the circuit court dismissed the petition for

writ of mandamus as moot, without first ruling on the August 22, 2012, motion to

supplement. In the order of dismissal, the court noted that the FDOC had argued in

its response that Florida Administrative Code Rule 33-210.103 had “been clarified
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to include mail to and from the Florida Bar and news media, and that the grievance

responses concerning the plaintiff’s correspondence would be changed to reflect

that.” Upon that basis, the court concluded that the petition was moot. As an

initial matter, we note that we are not persuaded that a party’s promise to take

some action in the future (here, the FDOC’s representation that it would change the

petitioner’s grievances, having not yet done so) is sufficient to render a cause of

action moot. That conclusion does not, however, form the primary basis for our

decision.

      In the instant appeal, Morrison raises several arguments which do not

warrant further discussion. Among these, however, he argues that the petition for

writ of mandamus was not moot because there was a pending motion to

supplement the petition with additional claims (specifically, the claims regarding

the processing of Morrison’s correspondence from Attorney Weber) at the time of

the dismissal. The FDOC argues, in relevant part, that the circuit court correctly

dismissed the petition as moot, and notes that “[i]f the trial court reaches the right

result, but for the wrong reasons, it will be upheld if there is any basis which would

support the judgment in the record.” Dade County Sch. Bd. v. Radio Station

WQBA, 

, 644 (Fla. 1999).




                                          4
      We agree with the appellant that the circuit court failed to complete its

judicial labor by entering a ruling on the motion to supplement (for all practical

purposes a motion to amend) the petition. Rule 1.190(a) provides:

            A party may amend a pleading once as a matter of course
            at any time before a responsive pleading is served or, if
            the first pleading is one to which no responsive pleading
            is permitted and the action has not been placed on the
            trial calendar, may so amend at any time within 20 days
            after it is served. Otherwise, a party may amend a
            pleading only by leave of court or by written consent of
            the adverse party. If a party files a motion to amend a
            pleading, the party shall attach the proposed amended
            pleading to the motion. Leave of court shall be given
            freely when justice so requires. A party shall plead in
            response to an amended pleading within ten days after
            service of the amended pleading, unless the court orders
            otherwise.

Fla. R. Civ. P. 1.190(a) (emphasis added). Here, this was a subsequent motion to

amend, and the decision to grant or deny that motion was within the discretion of

the circuit court. 

circuit court did not enter any ruling on the

motion.

      We cannot conclude that the failure to rule on the petitioner’s motion to

supplement the petition with the claims regarding the processing of his legal mail

is subject to the “tipsy coachman” doctrine set forth in Dade County Sch. Bd. v.

Radio Station 

. Under Rule 33-210.102, “legal mail” is

defined as “mail to and from various entities,” including “(b) state attorneys, (c)

                                         5
private attorneys, (d) public defenders, [and] (e) legal aid organizations.” See Fla.

Admin. Code R. 33-210.102 (emphasis added). Rule 33-210.102(8)(d) requires

that legal mail be processed the same way as privileged mail: opened in the

presence of the inmate to determine that the mail is legal mail and contains no

unauthorized items. See Fla. Admin. Code R. 33-210.102(8)(d). During this

process, only the letterhead and signature are to be read. See 

record

shows that the FDOC opened and read letters from a private attorney to the

appellant outside his presence and in all respects treated that correspondence as

routine mail. As to the inclusion of a “questionnaire” with the correspondence,

questionnaires – especially involving potential or pending litigation – are not

included anywhere in the list of prohibited items found in Rule 33-210.102. 1


1
  That rule provides that “[i]nmates shall be permitted to receive only legal
documents, legal correspondence, written materials of a legal nature (other than
publications), and self-addressed stamped envelopes through legal mail.” Fla.
Admin. Code R. 33-210.102(6). Items not permissible for inclusion in legal mail
but permissible for inclusion in routine mail include “1. Greeting cards, blank
greeting cards, stationery or other blank paper or envelopes; 2. Articles or
clippings or other written materials of a non-legal nature; 3. Photographs, unless
related to the inmate’s legal case . . . [and] 4. U.S. postage stamps, the value of
which cannot exceed the equivalent of 20 (1 oz.) first class stamps.” Fla. Admin.
Code R. 33-210.102(6)(a)(1-4). Furthermore, Rule 33-210.102 goes on to provide
that items which are prohibited from routine mail are also prohibited from
privileged mail, including “1. Non-paper items; 2. Items of a non-communicative
nature such as lottery tickets or matchbooks; 3. Stickers or stamps (other than
postage stamps, postal service attachments, and address labels affixed to outside of
                                         6
      In view of the foregoing, we conclude that it was error for the trial court to

fail to rule on the appellant’s motion to supplement the petition, and we cannot

conclude, without more, that the error was harmless. We therefore REVERSE the

circuit court’s order denying Morrison’s petition as moot, and we REMAND for

further proceedings.

LEWIS, C.J. and VAN NORTWICK, J., CONCUR; ROWE, J., CONCURS in
result.




envelope); 4. Address labels (other than those affixed to the outside of the
envelope); 5. Laminated cards or other laminated materials.” Fla. Admin. Code R.
33-210.102(6)(b)(1-5).
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