Smith v. Dep't of Corr.
| Decision Date | 01 June 2018 |
| Docket Number | Case No. 2D17–3409 |
| Citation | 255 So.3d 916 |
| Parties | Arthur Lee SMITH, Petitioner, v. DEPARTMENT OF CORRECTIONS and Commission on Offender Review, Respondents. |
| Court | Florida District Court of Appeals |
Arthur Lee Smith, pro se.
Mark Hiers, Assistant General Counsel, Tallahassee, for Respondent Commission on Offender Review.
Beverly Brewster, Assistant General Counsel, Tallahassee, for Respondent Department of Corrections.
Arthur Lee Smith petitions this court for a writ of certiorari. He contests the trial court's order denying his habeas corpus petition addressed to the revocation of his conditional release supervision. We have jurisdiction. See Fla. R. App. P. 9.030(b)(2)(B) ; see also Tarver v. Fla. Parole Comm'n, 990 So.2d 577, 578 (Fla. 3d DCA 2008) (). We deny his petition.
In 1991, the trial court sentenced Mr. Smith to prison for armed robbery. He was released on conditional release supervision in September 2009. His supervision was to end in 2020. Unfortunately for Mr. Smith, he violated his conditional release by committing several new offenses.
Upon receipt of a notice of violations from the Florida Commission on Offender Review (Commission), Mr. Smith, on July 22, 2016, executed a "Notice of hearing," in which he elected to postpone his conditional release violation hearing until disposition of his new law violations. Thereafter, on March 1, 2017, he signed a Waiver of Conditional Release Violation Hearing. On or about March 15, 2017, the Commission provided Mr. Smith with an amended notice of violations. This amended notice apparently added two additional violations of supervision. Mr. Smith signed the amended notice, and placed his initials next to a preprinted statement affirming that he "hereby freely and voluntarily waive[d] [his] right to [a] violation hearing." The Commission subsequently revoked his conditional release. Several months later, Mr. Smith filed a habeas corpus petition challenging his continued detention. The trial court summarily denied relief.
Mr. Smith seeks immediate release from prison and reinstatement to conditional release. He makes two arguments. First, he denies that he signed the notice postponing his hearing. Absent his agreement, he contends that the Commission had to conduct the violation hearing within forty-five days of his arrest. See § 947.141(2), Fla. Stat. (1991) (). Because no hearing took place within that time, Mr. Smith wants to be released from prison.
Second, Mr. Smith contends that he never signed a valid waiver of hearing for the March 15, 2017, amended notice. He admits to signing a waiver for the original notice. Yet, he asserts: (1) he has no recollection of signing the amended notice; and, (2) even if he did sign it, the notice was legally ineffective because it did not enumerate all of the rights he was waiving.
We note that "once an inmate has had a full review on the merits of a Parole Commission order in the circuit court, he or she is not entitled to a second plenary appeal of the order in the district court." Sheley v. Fla. Parole Comm'n, 720 So.2d 216, 218 (Fla. 1998). Rather, we exercise a narrow and limited review. "[T]he district court's role on second-tier certiorari review [is] limited to a two-pronged review of the circuit court decision, not a de novo review of the agency decision." Fla. Parole Comm'n v. Taylor, 132 So.3d 780, 783 (Fla. 2014) (emphasis omitted) (quoting Broward County. v. G.B.V. Int'l Ltd., 787 So. 2d 838, 845 (Fla. 2001) ). We are called upon "to determine only whether the circuit court: (1) afforded procedural due process; and (2) applied the correct law." Id."The test that has always applied to second-tier certiorari [is]: it should be granted only when there is a departure from the essential requirements of law resulting in a miscarriage of justice ." Id. (alteration in original) (quoting Nader v. Fla. Dep't of Highway Safety & Motor Vehicles, 87 So.3d 712, 726 (Fla. 2012) ). "A ruling constitutes a departure from the essential requirements of law when it amounts to ‘a violation of a clearly established principle of law resulting in a miscarriage of justice.’ " Miami–Dade County v. Omnipoint Holdings, Inc., 863 So.2d 195, 199 (Fla. 2003) (quoting Tedder v. Fla. Parole Comm'n, 842 So.2d 1022, 1024 (Fla. 1st DCA 2003) ).
Clearly established law can be derived not only from case law dealing with the same issue of law, but also from an interpretation or application of a statute, a procedural rule, or a constitution provision. When the established law provides no controlling precedent, however, certiorari relief cannot be granted because without such controlling precedent, [a district court] cannot conclude that [a circuit court] violated a clearly establish principle of law. Further, a misapplication or an erroneous interpretation of the correct law does not rise to the level of a violation of a clearly established principle of law.
State, Dep't of Highway Safety & Motor Vehicles v. Edenfield, 58 So.3d 904, 906 (Fla. 1st DCA 2011) (citations and internal quotation marks omitted).
We recognize that "[i]n granting writs of common-law certiorari, the district courts of appeal should not be as concerned with the mere existence of legal error as much as with the seriousness of the error." Combs v. State, 436 So.2d 93, 95 (Fla. 1983). "[C]ertiorari cannot be used to grant a second appeal to correct the existence of mere legal error." Custer Med. Ctr. v. United Auto. Ins. Co., 62 So.3d 1086, 1093 (Fla. 2010). Rather, second-tier certiorari is meant to rectify "an inherent illegality or irregularity, an abuse of judicial power, an act of judicial tyranny perpetrated with disregard of procedural requirements, resulting in a gross miscarriage of justice." Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 527 (Fla. 1995) (quoting Jones v. State, 477 So.2d 566, 569 (Fla. 1985) (Boyd, C.J., concurring specially) ).
Mr. Smith's first argument is meritless. Even if he did not sign a document postponing the hearing, no law commands that a failure to conduct a revocation hearing within forty-five days must result in his release. "Nothing in [ section 947.141 ] provides that the failure to timely conduct a conditional release supervision revocation hearing is jurisdictional." Gillard v. State, 827 So.2d 316, 317 (Fla. 1st DCA 2002). Moreover, as Gillard explained:
[R]evocation hearings are governed by due process considerations and are subject to the requirement that they be conducted within a reasonable time. If the applicable statute sets forth a definite time period for the hearing, and the time period is violated, the delay is presumed unreasonable. To be entitled to relief, the releasee must show that he was prejudiced by the alleged delay in addition to showing the statutory violation.
Id. (emphasis added) (citations omitted). Mr. Smith makes no such showing. See Danluck v. Lotspeich Co., 334 So.2d 32, 34 (Fla. 3d DCA 1976) ().
Mr. Smith's failure to show prejudice dovetails with another reason that his first argument cannot succeed. As reflected in the trial court's thorough order denying habeas relief, Mr. Smith validly postponed his hearing, pending "disposition of ... charges against [him]." He chose to "waive the forty-five (45) day time constraint to have a violation hearing." Mr. Smith cannot now be heard to complain that he was deprived of a timely hearing. See Fla. Admin. Code R. 23–23.011(4)(d) (2016) (). Nor can we...
To continue reading
Request your trial