Randall v. Florida Dept. of Law Enforcement

Citation791 So.2d 1238
Decision Date21 August 2001
Docket NumberNo. 1D00-2169.,1D00-2169.
PartiesLeonard David RANDALL, Petitioner, v. FLORIDA DEPARTMENT OF LAW ENFORCEMENT, Respondent.
CourtCourt of Appeal of Florida (US)

Sheldon Zipkin of Law Offices of Sheldon Zipkin, P.A., North Miami Beach, for Petitioner.

William L. Camper, General Counsel, Florida Parole Commission; John P. Booth, Assistant General Counsel, Florida Department of Law Enforcement, Tallahassee, for Respondent.

WEBSTER, J.

Leonard Randall seeks review by certiorari of the trial court's denial of a petition for a writ of mandamus which sought to compel the Florida Department of Law Enforcement to issue a certificate of eligibility for expunction of his criminal history record pursuant to section 943.0585, Florida Statutes (Supp.1998). In essence, we are asked to decide whether a full pardon signed by the Governor of Florida (and approved by three members of the Cabinet) has the effect of wiping out guilt, so that the conviction is treated as though it had never occurred; or whether the pardon merely removes all legal punishment for the offense, forgiving, but not vitiating, the fact of guilt. We conclude that the latter is the correct view. Accordingly, we hold that the trial court did not depart from the essential requirements of law, and deny the petition.

I.

The pertinent facts are undisputed. Randall was convicted of falsely or fraudulently making a certificate as a notary public, a third-degree felony, in 1985. He was granted a full pardon by Governor Buddy MacKay (which was approved by the entire Cabinet) on December 21, 1998. On April 7, 1999, Randall applied to the Department of Law Enforcement for a certificate of eligibility to have his criminal history record expunged. On the application, he noted the conviction and the subsequent pardon. The Department of Law Enforcement denied the application on August 10, 1999, on the ground that "[t]he criminal history record reflect[ed] an adjudication of guilty of the charge[ ] from the arrest or alleged criminal activity to which the application pertain[ed]." Randall then filed in the trial court a petition seeking a writ of mandamus to compel the Department of Law Enforcement to issue the certificate of eligibility.

In his mandamus petition, Randall recited the foregoing facts. He then cited the decision in Doe v. State, 595 So.2d 212, 213 (Fla. 5th DCA 1992), for the proposition that "[w]hen the pardon is full, it remits the punishment and blots out of existence the guilt, so that in the eyes of the law the offender is as innocent as if he never committed the offense." Finally, he asserted that "[n]o valid statute or law permits the [Department of Law Enforcement's] withholding or refusal to issue a Certificate of Eligibility." The trial court issued an order to show cause, to which the Department responded. In its response, the Department asserted that section 943.0585, Florida Statutes, precluded it from issuing a certificate of eligibility for expunction of a criminal history record if the applicant had been adjudicated guilty of any act stemming from the arrest or alleged criminal activity to which the petition related. It asserted, further, that Doe v. State, upon which Randall relied, was inconsistent with other Florida cases, as well as federal decisions and decisions from other states. Finally, the Department argued that, even if correctly decided, Doe was inapplicable because of changes in the controlling statutes since the decision. The trial court eventually held that ineligibility for a certificate because of an adjudication of guilt of an act stemming from the arrest or criminal activity to which the petition related was not removed by a full pardon absent a specific provision in the pardon to that effect. Randall seeks review of that order by a petition for a writ of certiorari. We have jurisdiction. See Sheley v. Florida Parole Comm'n, 703 So.2d 1202 (Fla. 1st DCA 1997) (criminal division en banc)

, approved, 720 So.2d 216 (Fla.1998).

II.

The scope of our review on such a petition for certiorari is limited to determining whether the trial court (1) afforded due process and (2) observed the essential requirements of law. Sheley, 703 So.2d at 1206. Randall does not claim that the trial court failed to afford him due process of law. Accordingly, our review is limited to determining whether the trial court's ruling constitutes a departure from the essential requirements of law, that is, whether it constitutes "a violation of a clearly established principle of law resulting in a miscarriage of justice." Combs v. State, 436 So.2d 93, 96 (Fla.1983).

Mandamus is an extraordinary remedy. State ex rel. Haft v. Adams, 238 So.2d 843, 844 (Fla.1970). One seeking a writ of mandamus must establish the existence of "a clear legal right to the performance of a clear legal duty by a public officer and that ... no other legal remedies [are] available." Hatten v. State, 561 So.2d 562, 563 (Fla.1990). "Mandamus may not be used to establish the existence of ... a right, but only to enforce a right already clearly and certainly established in the law." Florida League of Cities v. Smith, 607 So.2d 397, 401 (Fla.1992). Thus, to be entitled to the writ of mandamus he sought in the trial court, Randall was obliged to demonstrate that he had a clear legal right to the certificate of eligibility for expunction; that the Department had a clear legal duty to issue the certificate; and that no other legal remedy was available to him.

III.

Section 943.0585, Florida Statutes (Supp.1998), authorizes "[a]ny court of competent jurisdiction [to] order a criminal justice agency to expunge the criminal history record of a minor or an adult who complies with the requirements of th[at] section." However, a court may not order a criminal history record expunged until the person seeking such action has applied for and received a "certificate of eligibility for expunction" from the Department. The requirements for a certificate of eligibility are set out in section 943.0585(2). Upon receipt of an application which satisfies the statutory requirements, the Department has a legal duty to issue a certificate. Id. Among other things, a person seeking a certificate of eligibility must establish that he or she "[h]as not been adjudicated guilty of, or adjudicated delinquent for committing, any of the acts stemming from the arrest or alleged criminal activity to which the petition to expunge pertains." § 943.0585(2)(e), Fla. Stat. (Supp.1998). Relying principally on the decision in Doe v. State, 595 So.2d 212 (Fla. 5th DCA 1992), Randall argues that the effect of his full pardon was to erase his conviction so that, as a matter of law, he was entitled to be treated as though the conviction had never occurred. Therefore, he contends that he had a clear legal right to the certificate of eligibility, and the Department had a clear legal duty to issue it. The Department responds that, while a full pardon removes all legal punishment for an offense, it merely forgives, rather than vitiates, the fact of guilt. Therefore, it contends that Randall failed to establish either that he had a clear legal right to a certificate of eligibility or that the Department had a clear legal duty to issue one.

The Florida Constitution provides that, "[e]xcept in cases of treason and in cases where impeachment results in conviction, the governor may, ... with the approval of three members of the cabinet, grant full or conditional pardons." Art. IV, § 8(a), Fla. Const. This is a discretionary power vested exclusively in the executive, with which neither the legislature nor the judiciary may interfere. Sullivan v. Askew, 348 So.2d 312, 316 (Fla. 1977). It is undisputed that Randall received a "full pardon," signed by Governor MacKay, and approved by the entire Cabinet. To resolve this dispute, we must determine the legal effect of such a "full pardon."

A.

As previously noted, Randall relies principally on Doe v. State, 595 So.2d 212 (Fla. 5th DCA 1992), to support his argument that he has a clear legal right to issuance of the certificate of eligibility, and the Department has a clear legal duty to issue it. In Doe, the appellant, who had been convicted of being an accessory to robbery, sought expunction of his criminal history record pursuant to section 943.058, Florida Statutes (1989), following receipt of a full pardon. Id. at 213. At the time, there was no statutory requirement that a person petitioning a court for expunction of a criminal history record first obtain a certificate of eligibility from the Department. See ch. 92-73, § 3, Laws of Fla. (creating section 943.0585, Florida Statutes, subsection 2 of which required a person seeking to expunge his or her criminal history record to apply to the Department for a certificate of eligibility for expunction before petitioning the court); ch. 95-427, § 3, Laws of Fla. (adding to section 943.0585 the language "The court shall not order a criminal justice agency to expunge a criminal history record until the person seeking to expunge a criminal history record has applied for and received a certificate of eligibility for expunction pursuant to subsection (2)."). The trial court denied the petition, concluding that, as a matter of law, Doe was not entitled to expunction because section 943.058(2)(b), Florida Statutes (1989), required that, to be eligible, "[t]he person who is the subject of the record" must not have "been adjudicated guilty of any of the charges stemming from the arrest or alleged criminal activity to which the records expunction petition pertains." According to the trial court, "the fact that appellant ha[d] received a full and unconditional pardon ... d[id] not remove the adjudication of guilt." 595 So.2d at 213.

Reversing the trial court, the Fifth District rejected the state's argument "that a full and unconditional pardon does not remove the adjudication itself but only removes the...

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