Department of Health and Rehabilitative Services v. Career Service Com'n, AV-163

• Decision Date: 16 March 1984
• Docket Number: No. AV-163,AV-163
• Citation: 448 So.2d 18
• Parties: DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Petitioner, v. CAREER SERVICE COMMISSION, Respondent.
• Court: Florida District Court of Appeals

Page 18

448 So.2d 18

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Petitioner, v. CAREER SERVICE COMMISSION, Respondent.

No. AV-163.

District Court of Appeal of Florida First District.

March 16, 1984.

Leonard Helfand, Dist. Legal Counsel, Fla. Dept. of Health & Rehabilitative Services, Miami, for petitioner.

William H. Ravenell, Dept. of Legal Affairs, Dorothy Roberts, Appeals Coordinator, Career Service Com'n, Tallahassee, and Steven Abramowitz, Miami, for respondent.

ON PETITION FOR WRIT OF CERTIORARI OR PROHIBITION

JOANOS, Judge.

The Department of Health and Rehabilitative Services ("HRS") petitions for a writ of certiorari or prohibition, challenging a Career Service Commission order accepting jurisdiction of Figueiral's appeal. Were we to treat this as a petition for certiorari, the petition would be untimely, since it was not filed within 30 days of rendition of the order to be reviewed. ¹ Review pursuant to Section 120.68(1) would also have provided an appropriate remedy subject to a 30 day filing requirement, see Shevin v. PSC, 333 So.2d 9 (Fla.1976). However, Fla.R.App.P. 9.030(b)(3) also provides that this court may issue a writ of prohibition not subject to the 30 day filing requirement, and the language in Rule 9.030(b)(3), unlike the language in Rule 9.030(a)(3), does not restrict the district courts' ability to issue writs of prohibition to courts. See 32 F.S.A. Rule 9.030 1980 Committee Notes. "The question of jurisdiction has historically been one that is immediately reviewable by extraordinary writ or interlocutory review," Department of Environmental Regulation v. Career Service Comm., 344 So.2d 1292, 1293 (Fla. 1st DCA 1977). Since the present case involves a question of subject matter jurisdiction, we have determined it is appropriate to consider the case pursuant to our original jurisdiction to issue extraordinary writs.

The issue to be resolved is whether Figueiral achieved permanent employee status prior to his termination, giving him the right to appeal the termination to the Career Service Commission. Figueiral was hired by HRS in provisional status on November 6, 1981. He became a probationary employee on January 1, 1982, and was terminated on May 5, 1982, pursuant to notification of termination given by letter dated April 27, 1982. Even assuming Figueiral was given credit for his provisional status (November 6, 1981, to January 1, 1982) towards his six month probationary period, he did not achieve permanent status and is not entitled to review of his termination by the Career Service Commission.

Respondent relies upon Fla.Admin.Code Rule 22A-7.04(1) which provides:

An employee who has been legally...