Sheley v. Florida Parole Com'n, No. 97-1659

• Court: Court of Appeal of Florida (US)
• Writing for the Court: PADOVANO
• Citation: 703 So.2d 1202
• Parties: 23 Fla. L. Weekly D130 Robert P. SHELEY, Appellant, v. FLORIDA PAROLE COMMISSION, Appellee.
• Docket Number: No. 97-1659
• Decision Date: 31 December 1997

Page 1202

703 So.2d 1202 23 Fla. L. Weekly D130 Robert P. SHELEY, Appellant,
v.
FLORIDA PAROLE COMMISSION, Appellee. No. 97-1659. District Court of Appeal of Florida,
First District. Dec. 31, 1997.

Page 1204

Robert P. Sheley, pro se, Appellant.

William L. Camper, General Counsel, and Kim M. Fluharty, Assistant General Counsel, Florida Parole Commission, Tallahassee, for Appellee.

CRIMINAL DIVISION EN BANC

PADOVANO, Judge.

Robert P. Sheley, an inmate serving a life sentence for armed robbery, petitioned the circuit court for a writ of mandamus to review an order of the Florida Parole Commission suspending his presumptive parole release date. The circuit court denied the petition on the ground that the Commission's action was supported by the evidence, and the inmate appealed to this court. We treat the appeal as a petition for writ of certiorari and, finding no departure from the essential requirements of law, we deny relief.

The Parole Commission entered an order on July 16, 1996, suspending inmate Sheley's presumptive parole release date and declining to authorize an effective parole release date. In support of the order, the Commission cited the inmate's lengthy criminal history and the facts of some of his prior offenses. These offenses included escapes and escape attempts as well as armed attacks on law enforcement and corrections personnel. The Commission also expressed serious concerns about the inmate's mental health evaluation. Based on this evidence, the Commission concluded that the inmate's "release on parole would not be compatible with his welfare or the welfare of society."

This order became the subject of the inmate's petition for writ of mandamus in the circuit court. There he argued that the Commission was in error as to certain facts relating to the prior convictions, and that the Commission had failed to note an intervening mental health evaluation which contained more positive information. The circuit court issued an order to show cause, and the Commission filed a response containing the records considered in the administrative hearing. Following the submission of the response, the circuit court denied the petition for writ of mandamus. The court found that "there is ample evidence to support the Commission's decision declining to authorize the [inmate's] effective parole release date."

The inmate filed a timely appeal from the order of the circuit court, but in our view an appeal was not the correct remedy. Because the order was entered in a review proceeding in the circuit court, subsequent relief is available in this court only by the more limited remedy of certiorari. Rule 9.040(c) of the Florida Rules of Appellate Procedure states in material part that "[i]f a party seeks an improper remedy, the cause shall be treated as if the proper remedy had been sought." See, e.g., Johnson v. Citizens State Bank, 537 So.2d 96 (Fla.1989)(appeal treated as certiorari); Skinner v. Skinner, 561 So.2d 260 (Fla.1990)(certiorari treated as appeal). Based on the authority granted by rule 9.040(c), we treat the appeal in the present case as a petition for writ of certiorari.

We acknowledge that if mandamus is used to initiate a new civil action in the circuit court, the resulting final order is subject to review by appeal. Mandamus is an action at law, See State ex rel Mott v. Scofield, 120 So.2d 825 (Fla. 2d DCA 1960), and, as with other actions at law, a final judgment on a complaint for writ of mandamus is reviewable by appeal. See, e.g., Warren v. State ex rel Four Forty, Inc., 76 So.2d 485 (Fla.1954); City of Miami Beach v. State ex rel Pickin' Chicken of Lincoln Road, Inc., 129 So.2d 696 (Fla. 3d DCA 1961); Conner v. Mid-Florida Growers Inc., 541 So.2d 1252 (Fla. 2d DCA 1989). These principles cannot be applied in the present case, however, because the petition for writ of mandamus was filed in the circuit court as an appellate remedy

Page 1205

to review quasi-judicial action of a lower tribunal.

Rule 9.030(b)(2) of the Florida Rules of Appellate Procedure provides that the district courts of appeal shall have jurisdiction to issue writs of certiorari to review (A) nonfinal orders of lower tribunals other than as prescribed in rule 9.130, and (B) final orders of circuit courts acting in their review capacity. When the circuit court denies a petition for writ of mandamus to challenge the decision of an administrative agency such as the Parole Commission, the court is plainly acting in its "review capacity." Therefore, the order of the circuit court is reviewable in the district...