Smith v. Dep't of Corr., Case No. 2D17–3409

• Court: Court of Appeal of Florida (US)
• Writing for the Court: LaROSE, Chief Judge.
• Citation: 255 So.3d 916
• Parties: Arthur Lee SMITH, Petitioner, v. DEPARTMENT OF CORRECTIONS and Commission on Offender Review, Respondents.
• Decision Date: 01 June 2018
• Docket Number: Case No. 2D17–3409

255 So.3d 916

Arthur Lee SMITH, Petitioner,
v.
DEPARTMENT OF CORRECTIONS and Commission on Offender Review, Respondents.

Case No. 2D17–3409

District Court of Appeal of Florida, Second District.

Opinion filed June 1, 2018
Rehearing Denied September 26, 2018

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.

LaROSE, Chief Judge.

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) ("[W]e treat the appeal [from the trial court's order denying a habeas petition pursuing review of the parole commission's decision to revoke conditional release] as a petition for writ of certiorari, and review the circuit court's denial pursuant to the applicable standard in cases involving second-tier certiorari."). We deny his petition.

Background

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's Certiorari Petition

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) ("Within 45 days after the arrest of a releasee charged with a violation of the terms and conditions of conditional release, the releasee must be afforded a hearing conducted by a commissioner or a duly authorized representative thereof."). Because no hearing took place within that time, Mr. Smith wants to be released from prison.

255 So.3d 919

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.

Analysis

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...