State ex rel. Boyles v. Florida Parole and Probation Com'n, s. AS-96

• Decision Date: 09 June 1983
• Docket Number: AS-110 and AS-111,Nos. AS-96,s. AS-96
• Citation: 436 So.2d 207
• Parties: STATE of Florida ex rel. Stephen L. BOYLES and Stephen L. Boyles, individually and as State Attorney of the Seventh Judicial Circuit of Florida, Petitioner, v. FLORIDA PAROLE AND PROBATION COMMISSION and Sidney L. Jaffe, Respondents. DIVISION OF FLORIDA LAND SALES AND CONDOMINIUMS, DEPARTMENT OF BUSINESS REGULATION, STATE OF FLORIDA, Petitioner, v. FLORIDA PAROLE AND PROBATION COMMISSION and Sidney L. Jaffe, Respondents. Jim SMITH, as Attorney General, State of Florida, Petitioner, v. FLORIDA PAROLE AND PROBATION COMMISSION and Sidney L. Jaffe, Respondents.
• Court: Florida District Court of Appeals

Page 207

436 So.2d 207

STATE of Florida ex rel. Stephen L. BOYLES and Stephen L.

Boyles, individually and as State Attorney of the

Seventh Judicial Circuit of Florida, Petitioner, v. FLORIDA PAROLE AND PROBATION COMMISSION and Sidney L. Jaffe,

Respondents.

DIVISION OF FLORIDA LAND SALES AND CONDOMINIUMS, DEPARTMENT

OF BUSINESS REGULATION, STATE OF FLORIDA, Petitioner, v. FLORIDA PAROLE AND PROBATION COMMISSION and Sidney L. Jaffe,

Respondents.

Jim SMITH, as Attorney General, State of Florida, Petitioner, v. FLORIDA PAROLE AND PROBATION COMMISSION and Sidney L. Jaffe,

Respondents.

Nos. AS-96, AS-110 and AS-111.

District Court of Appeal of Florida,

First District.

June 9, 1983.

As Corrected on Denial of Rehearing

Sept. 8, 1983.

Stephen L. Boyles, pro se.

William A. Hatch, Staff Atty., Dept. of Business Regulation, Tallahassee, for petitioner Div. of Florida Land Sales and Condominiums, Dept. of Business Regulation, State of Fla.

Jim Smith, Atty. Gen., Stephen L. Boyles, Sp. Asst. Atty. Gen., Palatka, and William A. Hatch, Sp. Asst. Atty. Gen., Dept. of Business Regulation, Tallahassee, for petitioner Jim Smith, As Attorney General, State of Fla.

Enoch J. Whitney, Gen. Counsel, Tallahassee, Florida Parole and Probation Com'n for respondent Florida Parole and Probation Com'n.

Daniel S. Dearing, of Dearing & Smith, Tallahassee, and Fletcher N. Baldwin, Jr., Gainesville, for respondent Sidney L. Jaffe.

SHIVERS, Judge.

Jim Smith, as Attorney General, petitions for common law writ of certiorari, as does Stephen L. Boyles, as State Attorney of the Seventh Judicial Circuit, and as does the Division of Florida Land Sales and Condominiums, Department of Business Regulation. Petitioners seek review of an order of the Parole and Probation Commission which establishes a new Presumptive Parole Release Date (PPRD) for inmate Sidney Jaffe. Because we view the action of the Commission in this case as departing from the essential requirements of law, we grant the Attorney General's petition and quash the subject order.

Jaffe was convicted on February 11, 1982, of 28 violations of section 498.033, Florida Statutes (1981) (registration of subdivided lands section of the Florida Uniform Land Sales Practices Law), a third degree felony, and one violation of section 843.15, Florida Statutes (1981) (failure of defendant on bail to appear), also a felony of the third degree. Jaffe was sentenced to five years on each count, seven of the counts to be served consecutively, and a $5,000 fine on each count. On October 13, 1982, Respondent Commission set November 24, 1988, as Jaffe's PPRD. At that time, the Commission considered Jaffe's proposal to pay restitution in exchange for his release and rejected that proposal by order of October 21, 1982. On November 17, 1982, the Commission reconsidered the same restitution proposal and again rejected it. The Commission order of November 22, 1982, stated that the Commission's action was based on "new information, attorney represented that money is set aside in the bank to make restitution to 27 victims." Jaffe again filed for review on January 11, 1983. This request made no mention of the proposed restitution plan already twice considered and rejected, but it correctly pointed out a computation error made in computing Jaffe's PPRD.

On March 2, 1983, the Commission again considered Jaffe's case. An agenda of the March 2, 1983, meeting had been prepared as required by section 120.53(1)(d), Florida Statutes (1981), but Jaffe's name was not on the agenda. At the March 2nd meeting the Commission entered an order correcting the computation error, but it also agreed to hear "new information" concerning the restitution plan. The Commission voted to mitigate Jaffe's PPRD by sixty (60) months. The resulting order of March 10, 1983, sets Jaffe's PPRD at "May 24, 1983 (conditional)." The "conditions" are spelled out in the order. First, verification is required that the money necessary to reimburse 27 people who suffered a loss as a result of Jaffe's offenses is again placed in escrow in a Florida bank. Money had previously been placed in such an escrow account pursuant to Jaffe's restitution plan but had been withdrawn when the Commission rejected the plan. Second, there is a requirement for verification that each of the 27 people have received an offer to be reimbursed in return for execution of a quitclaim deed to the property involved. Third, there is a requirement that each of the 27 people have either received the reimbursement or declined in writing to accept the offer of reimbursement or have failed to respond. Fourth, the order requires verification of the foregoing conditions before May 1, 1983. The order further provides that should the conditions not be fulfilled, the new PPRD would be vacated, and the PPRD reestablished to be May 24, 1988. Petitioners seek review of the foregoing order of March 10, 1983.

Certiorari is a common law writ which issues in the discretion of the court to an inferior tribunal to review its action and determine whether the inferior tribunal has exceeded its jurisdiction or has not proceeded in accordance with the essential requirements of law in cases where no remedy will lie by appeal. See generally 3 Fla.Jur.2d, Appellate Review § 456 (1978). A threshold question, therefore, is whether the petitioners here could appeal this order of the Commission, for, if so, certiorari would be improper. In Daniels v. Florida Parole and Probation Commission, 401 So.2d 1351 (Fla. 1st DCA 1981), this court set out the criteria for seeking review under section 120.68, Florida Statutes. One such criterion is that appellant must be a party to the action which he seeks to appeal. Since petitioners were not parties before the Commission, under Daniels, petitioners do not have standing to directly appeal the subject order. Therefore, certiorari may be proper. A person need not necessarily be a party to a proceeding in order to obtain certiorari review if he has sufficient interest in the subject matter of the order. Deans v. Wilcoxon, 18 Fla. 531 (1882); see Mackenzie v. Hillsborough County, 288 So.2d 200 (Fla.1973). See generally 14 Am.Jur.2d, Certiorari § 31 (1964); 3 Fla.Jur.2d, Appellate Review § 455 (1978).

Respondents contend that petitioners lack sufficient standing to bring this action. The point argued most strenuously by respondents is that none of the petitioners have suffered the type of injury which would entitle them to the writ. Respondent Commission cites 14 Am.Jur.2d, Certiorari § 31 (1964) for the proposition that enforcement of the decision reviewed must involve special, immediate, and direct injury to the interests of petitioner. We hold that in the instant case, the Attorney General, representing the people of Florida, has shown such an injury. Jaffe is a convicted felon who has demonstrated a propensity to manufacture injury to the people of this state. If he is paroled improperly, the people of Florida will suffer a direct injury. Further, the public would be injured by Jaffe's improper release since it would tend to undermine the credibility of the criminal enforcement provisions of the Florida Land Sales Act, an act conceived by the legislature to protect the people of Florida from land fraud. Additionally, we find that the facts of this case show a violation of the public notice requirements of section 120.53(1)(d), Florida Statutes (1981). We view this violation as analogous to violations of the Government in the Sunshine Law, section 286.011, Florida Statutes (1981), a violation of which constitutes an irreparable public injury. Town of Palm Beach v. Gradison, 296 So.2d 473 (Fla.1974).

In cases such as the one at bar, where the injury is to the public, the Attorney General has standing as a representative of the people. The Attorney General, as chief law officer of the State, may appear in and attend to all suits or actions in which the State may be "in anywise interested." Section 16.01(4), Florida Statutes (1981). State ex rel Shevin v. Kerwin, 279 So.2d 836 (Fla.1973). He is the "people's attorney" and may properly intervene in a matter to represent the people in the courts. Watson v. Claughton, 160 Fla. 217, 34 So.2d 243 (Fla.1948). As Justice Ervin stated in State ex rel Shevin v. Yarborough, 257 So.2d 891 (Fla.1972) (Ervin, J., specially concurring):

Among the cases above cited are statements to the effect that the Attorney General's discretion to litigate, or intervene in, legal matters deemed by him to involve the public interest is the exercise of a judicial act, and his standing therein cannot be challenged or adjudicated.

Id. at 895. See also Ervin v. Collins, 85 So.2d 852 (Fla.1956); State ex rel Landis v. S.H. Kress & Co., 115 Fla. 189, 155 So. 823 (1934); State ex rel Davis v. Love, 99 Fla. 333, 126 So. 374 (1930); State ex rel Attorney General v. Gleason, 12 Fla. 190 (1868). We, therefore, hold that in the instant case the Attorney General has standing to represent the interests of the people of Florida. In so holding, we find it unnecessary to decide the standing of Petitioners Boyles and Division of Land Sales and Condominiums, whose arguments...