NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT
ARTHUR LEE SMITH, ) ) Petitioner, ) ) v. ) Case No. 2D17-3409 ) DEPARTMENT OF CORRECTIONS ) and COMMISSION ON OFFENDER ) REVIEW, ) ) Respondents. ) )
Opinion filed June 1, 2018.
Petition for Writ of Certiorari to the Circuit Court for Desoto County; Kimberly Bonner, Judge.
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
-2- 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.
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., 787So. 2d 838, 845 (Fla. 2001)). We are called
upon "to determine only whether the circuit court: (1) afforded procedural due process; -3- 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 -4- disregard of procedural requirements, resulting in a gross miscarriage of justice."
Haines City Cmty. Dev. v.
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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT
ARTHUR LEE SMITH, ) ) Petitioner, ) ) v. ) Case No. 2D17-3409 ) DEPARTMENT OF CORRECTIONS ) and COMMISSION ON OFFENDER ) REVIEW, ) ) Respondents. ) )
Opinion filed June 1, 2018.
Petition for Writ of Certiorari to the Circuit Court for Desoto County; Kimberly Bonner, Judge.
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
-2- 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.
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., 787So. 2d 838, 845 (Fla. 2001)). We are called
upon "to determine only whether the circuit court: (1) afforded procedural due process; -3- 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 -4- 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) ("On certiorari, as on
appeal, there is a presumption as to the correctness of the trial court's rulings, and the
burden rests on the petitioner for certiorari to make any error complained about to
appear fully.").
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
-5- deprived of a timely hearing. See Fla. Admin. Code R. 23-23.011(4)(d) (2016) ("The
granting of a continuance or postponement on behalf of the conditional releasee
constitutes a waiver by the conditional releasee of all time constraints, any requirement
for a local hearing, and shall postpone disposition of the violations until notification is
received by the Commission that the pending criminal charges have been resolved or
the Releasee elects to proceed with or waive the hearing."). Nor can we say that the
trial court's conclusions were based on the incorrect law.
The crux of Mr. Smith's second argument is that he signed no valid waiver
for the March 15, 2017, amended notice. At first blush, the record seemingly supports
Mr. Smith's position. Although he signed a Waiver of Conditional Release Violation
Hearing for the original notice, he signed no such form for the amended notice. Under
careful scrutiny, however, this incongruity is unavailing.
On the March 15, 2017, amended notice, Mr. Smith initialed and signed a
provision stating that he was waiving his right to a violation hearing. With the exception
of the addition of offenses, the amended notice was identical to the original July 22,
2016, notice. Despite the absence of a formal waiver like the one he signed on March
1, 2017, our record amply demonstrates that the trial court correctly concluded that Mr.
Smith intended to waive a hearing for the amended notice.
Mr. Smith's petition falters upon a comparison of the original notice and
the amended notice. The original notice listed five violations: two burglary offenses
(paragraphs 1 and 3), two grand theft offenses (paragraphs 2 and 4), and a curfew
violation (paragraph 5). The State subsequently nolle prossed the theft charges. Mr.
Smith pleaded nolo contendere to the reduced charges of trespass, with the judgments
and sentences filed on March 1, 2017. Although the amended notice identified the five -6- violations alleged in the original notice, the amended notice also added the two trespass
convictions, as though they were new violations of conditional release. In fact, they
merely represented the adjudication of the violations alleged in paragraphs 1 and 3.
We cannot say that the trial court's denial of habeas relief constituted a
departure from the essential requirements of law. The factual scenario presented to us
does not implicate any due process concerns. See, e.g., McRae v. State, 88 So. 3d
384, 385 (Fla. 2d DCA 2012) (holding that revocation of probation based on an
uncharged violation deprives the defendant of due process and constitutes fundamental
error); Singletary v. State, 537 So. 2d 674, 674-75 (Fla. 2d DCA 1989) (recognizing that
the minimum procedural safeguards imposed by due process include the probationer's
right to notice of the claimed violations of his probation). Mr. Smith received notice and
an opportunity to be heard from the Commission.
Any one of the alleged violations would have been sufficient to revoke his
conditional release. See Logan v. State, 964 So. 2d 209, 210 (Fla. 5th DCA 2007)
(observing that when a conditional releasee "violate[s] a condition of release prior to the
expiration of their full, pronounced prison term, gain time and release are revoked and
they may be re-incarcerated for the balance of their sentence" (emphasis added)).
Furthermore, Mr. Smith cannot now complain that he was broadsided by
the absence of a more formal waiver of hearing pertaining to the amended notice. As
part of the March 1, 2017, waiver, Mr. Smith agreed to waive a number of rights.
Evidently, Mr. Smith was aware of the rights and processes he abandoned when he
signed the amended notice, a short two weeks later. Although the waiver for the
amended notice is not as detailed as the March 1, 2017, waiver, Mr. Smith cannot
demonstrate that he was caught unawares of the import and effect of affixing his initials -7- and signature to the amended notice, much less that the absence of a formal waiver
constitutes a miscarriage of justice.
It is true that a conditional releasee may withdraw his previously executed
violation hearing waiver within fourteen days after execution of the waiver. See Fla.
Admin. Code R. 23-23.011(4)(c)(1). Mr. Smith does not contend that he would have
withdrawn a formal waiver to the amended notice had he been offered and signed one.
Instead, by signing the waiver pertaining to the original notice, Mr. Smith demonstrated
his intent to waive a revocation hearing. Furthermore, as the new law violations served
as the basis for the amended notice, and they had been adjudicated at the time the
amended notice was issued, we cannot conceive of Mr. Smith electing to revoke such a
waiver.
Because the trial court applied the correct law and afforded procedural
due process, we must deny the petition on the merits.
Petition denied.
CRENSHAW and LUCAS, JJ., Concur.
-8-