07-6313 STATE OF FLORIDA, DEPT. OF REVENUE on behalf of LINDA BARNES v. DARIUS J. SWATTS

State: Florida

Court: Florida First District Court

Docket No: 07-6313

Case Date: 08/29/2008

Preview:IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA STATE OF FLORIDA, DEPARTMENT OF REVENUE, on behalf of LINDA BARNES, Petitioner, v. DARIUS J. SWATTS, Respondent. _____________________________/ NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED CASE NO. 1D07-6313

Opinion filed August 29, 2008. Petition for Writ of Certiorari - Original Jurisdiction Bill McCollum, Attorney General, and William H. Branch, Assistant Attorney General, Tallahassee, for Petitioner. No appearance for Respondent.

PER CURIAM. Inasmuch as the circuit court essentially construed the respondent's handwritten pro se request for DNA testing as a section 742.10(4), Florida Statutes,

challenge to paternity based on fraud, duress, or material mistake of fact, we deny the petition for writ of certiorari. See Dade County School Bd. v. Radio Station WQBA, 731 So. 2d 638 (Fla. 1999). ALLEN, and BENTON, JJ., CONCUR; BROWNING, C.J., DISSENTS WITH OPINION.

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BROWNING, C.J., dissents. I respectfully dissent. Respondent's handwritten unsworn letter to the lower court does not constitute a lawful challenge under section 742.10(4), Florida Statutes, when read in pari materia with section 742.18, Florida Statutes. I would quash the lower court's order on the authority of Department of Revenue v. Price, 958 So. 2d 1045 (Fla. 2d DCA 2007): a case, I might add, that the trial judge recognized as involving facts "essentially identical" to the facts at issue.

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