Rothermel v. Florida Parole and Probation Com'n, No. AR-333

CourtFlorida District Court of Appeals
Writing for the CourtNIMMONS; ERVIN, C.J., and WENTWORTH
Citation441 So.2d 663
PartiesDennis Russell ROTHERMEL, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
Decision Date14 October 1983
Docket NumberNo. AR-333

Page 663

441 So.2d 663
Dennis Russell ROTHERMEL, Appellant,
v.
FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
No. AR-333.
District Court of Appeal of Florida,
First District.
Oct. 14, 1983.
Rehearing Denied Dec. 28, 1983.

John Charles Coleman, Fort Myers, for appellant.

Doris E. Jenkins, Asst. Gen. Counsel, Tallahassee, Florida Parole and Probation Com'n for appellee.

Richard A. Belz, Executive Director, Florida Institutional Legal Services, Inc., Gainesville, amicus curiae.

Page 664

Patricia Gleason, Asst. Atty. Gen., for Florida Administration Com'n, amicus curiae.

ON MOTION TO DISMISS

NIMMONS, Judge.

On March 7, 1983, Rothermel filed a notice of appeal pursuant to Section 120.68, Florida Statutes (1981), seeking review of an order of the Parole and Probation Commission (the Commission) rendered on February 2, 1983, in which the Commission denied Rothermel's request to change his presumptive parole release date (PPRD).

The Commission filed a motion to dismiss the appeal and asserts two grounds in support thereof: (1) that an order entered February 8, 1983, by the Florida Administration Commission pursuant to Section 120.63, Florida Statutes (1981), purporting to exempt from Section 120.68 review prisoner appeals from Commission actions relating to presumptive parole release dates entitles the Commission to dismissal of Section 120.68 appeals filed after February 8, 1983; and (2) that Chapter 83-78, Laws of Florida, 1 purporting to amend Chapter 120 by precluding Section 120.68 appellate review 2 of, among other things, Commission actions concerning PPRD's should be applied retrospectively so as to entitle the Commission to dismissal of appeals pending on June 6, 1983, the effective date of the act. Since we determine that the Commission is entitled to dismissal under ground number 2, we do not reach the question presented in ground number 1.

It is true that Florida follows the general rule that in the absence of a clear legislative expression to the contrary, a law is presumed to apply prospectively, State v. Lavazzoli, 434 So.2d 321 (Fla.1983); Seddon v. Harpster, 403 So.2d 409 (Fla.1981); Walker & LaBerge, Inc. v. Halligan, 344 So.2d 239 (Fla.1977), and that Chapter 83-78 is silent concerning the prospective or retrospective operation of its provisions precluding Section 120.68 review. However, statutes which do not alter contractual or vested rights but relate only to remedies or procedure are not within the general rule against retrospective operation and, absent a saving clause, all pending proceedings are affected. 73 Am.Jur.2d Statutes § 354; 16A Am.Jur.2d Constitutional Law § 675. It has been stated:

Under the common law, if a statute is unconditionally repealed without a saving clause in favor of pending suits, all pending proceedings thereunder are terminated. This is true of the repeal of a law relating to procedure, or of a law conferring jurisdiction, in which case the right to proceed further in an action that is pending but undetermined at the time of the repeal is taken away.

73 Am.Jur.2d Statutes § 389. See also Turner v. United States, 410 F.2d 837, 842 (5th Cir.1969); United States v. Vanella, 619 F.2d 384 (5th Cir.1980); and United States v. Blue Sea Line, 553 F.2d 445 (5th Cir.1977).

Since no clear intent is expressed in the subject legislation, its provisions will apply retrospectively if they are remedial or procedural and do not affect substantive or vested rights. There can be little doubt that the relevant portions of Chapter 83-78 are of the kind which affect only remedial or procedural statutory provisions. It is generally recognized that no vested rights exist as to a particular remedy or mode of procedure. 16A Am.Jur.2d Constitutional Law § 672; Sullivan v. Mayo, 121 So.2d 424 (Fla.1960); Turner v. United States, supra.

Page 665

Although we have found no Florida case squarely on point with respect to the applicability of the...

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30 practice notes
  • Brown v. City of Clewiston, No. 87-5503
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • July 13, 1988
    ...is altered." State v. Lavazzoli, 434 So.2d 321, 323 (Fla.1983) (emphasis added). Cf. Rothermel v. Florida Parole and Probation Comm'n, 441 So.2d 663, 665 (Fla.Dist.Ct.App.1983) ("it appears that ... cases pending on appeal and not yet determined are affected by legislative acts which pertai......
  • Martin v. State, Case No. 2D16–4468
    • United States
    • Court of Appeal of Florida (US)
    • May 4, 2018
    ...appeal." Heilmann v. State, 310 So.2d 376, 377 (Fla. 2d DCA 1975) (footnote omitted); see also Rothermel v. Fla. Parole & Prob. Comm'n, 441 So.2d 663, 665 (Fla. 1st DCA 1983) ("Although we have found no Florida case squarely on point with respect to the applicability of the principles of la......
  • Promontory Enterprises, Inc. v. SOUTHERN ENGIN. & CONTRACT., INC., No. 5D03-495.
    • United States
    • Court of Appeal of Florida (US)
    • January 2, 2004
    ...385 (Fla. 3d DCA 2002); Fallschase Dev. Corp. v. Blakey, 696 So.2d 833 (Fla. 1st DCA 1997); Rothermel v. Florida Parole & Prob. Comm'n, 441 So.2d 663 (Fla. 1st DCA 1983); see also Lockheed Space Operations v. Pham, 600 So.2d 1261 (Fla. 1st DCA 1992) (Ervin, J., concurring). The Legislature ......
  • Foliage Design Systems, Inc. v. Fernandez, No. 90-3382
    • United States
    • Court of Appeal of Florida (US)
    • November 13, 1991
    ...117 (Fla. 1st DCA 1984); City of Tampa v. Fein, 438 So.2d 442 (Fla. 1st DCA 1983); Rothermel v. Florida Parole and Probation Commission, 441 So.2d 663 (Fla. 1st DCA 1982); Batch v. State of Florida, 405 So.2d 302 (Fla. 4th DCA 1981); Harris v. State of Florida, 400 So.2d 819 (Fla. 5th DCA 1......
  • Request a trial to view additional results
30 cases
  • Brown v. City of Clewiston, No. 87-5503
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • July 13, 1988
    ...is altered." State v. Lavazzoli, 434 So.2d 321, 323 (Fla.1983) (emphasis added). Cf. Rothermel v. Florida Parole and Probation Comm'n, 441 So.2d 663, 665 (Fla.Dist.Ct.App.1983) ("it appears that ... cases pending on appeal and not yet determined are affected by legislative acts which pertai......
  • Martin v. State, Case No. 2D16–4468
    • United States
    • Court of Appeal of Florida (US)
    • May 4, 2018
    ...appeal." Heilmann v. State, 310 So.2d 376, 377 (Fla. 2d DCA 1975) (footnote omitted); see also Rothermel v. Fla. Parole & Prob. Comm'n, 441 So.2d 663, 665 (Fla. 1st DCA 1983) ("Although we have found no Florida case squarely on point with respect to the applicability of the principles of la......
  • Promontory Enterprises, Inc. v. SOUTHERN ENGIN. & CONTRACT., INC., No. 5D03-495.
    • United States
    • Court of Appeal of Florida (US)
    • January 2, 2004
    ...385 (Fla. 3d DCA 2002); Fallschase Dev. Corp. v. Blakey, 696 So.2d 833 (Fla. 1st DCA 1997); Rothermel v. Florida Parole & Prob. Comm'n, 441 So.2d 663 (Fla. 1st DCA 1983); see also Lockheed Space Operations v. Pham, 600 So.2d 1261 (Fla. 1st DCA 1992) (Ervin, J., concurring). The Legislature ......
  • Foliage Design Systems, Inc. v. Fernandez, No. 90-3382
    • United States
    • Court of Appeal of Florida (US)
    • November 13, 1991
    ...117 (Fla. 1st DCA 1984); City of Tampa v. Fein, 438 So.2d 442 (Fla. 1st DCA 1983); Rothermel v. Florida Parole and Probation Commission, 441 So.2d 663 (Fla. 1st DCA 1982); Batch v. State of Florida, 405 So.2d 302 (Fla. 4th DCA 1981); Harris v. State of Florida, 400 So.2d 819 (Fla. 5th DCA 1......
  • Request a trial to view additional results

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