State, Department of Highway Safety & Motor Vehicles v. Walsh

BILBREY, J.,

dissents.

.. I respectfully dissent.. There is no question that the circuit court erred in concluding State, Department of Highway Safety and Motor Vehicles v. Abbey, 745 So.2d 1024 (Fla. 2d DCA 1999), was not binding upon it.² But this legal error does not constitute a miscarriage of justice, and therefore, second-tier certiorari review is not available to the Department.

Mere legal error is not a basis for granting second-tier certiorari review. Custer Med. Ctr. v. United Auto. Ins, Co., 62 So.3d 1086, 1093 (Fla.2010). It is not the existence of error which matters, but the “seriousness of the error.” Combs v. State, 436 So.2d 93, 95 (Fla.1983); Ivey v. Allstate Ins. Co., 774 So.2d 679, 682 (Fla.2000) (quoting Stilson v. Allstate Ins. Co., 692 So.2d 979, 982-83 (Fla. 2d DCA 1997)). Thus, second-tier, certiorari is intended to correct “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)).

Admittedly, the concept of “miscarriage of justice” for purposes of granting certio-rari relief under Florida law has not been defined. The Supreme Court has deliberately avoided enumerating errors which would constitute a miscarriage of justice. See Combs, 436 So.2d at 96; Nader v. Dep’t of Highway Safety & Motor Vehs., 87 So.3d 712, 726 (Fla.2012). But, it is clear that it is the rare case which warrants second-tier certiorari relief.

The majority mentions the recent decision Futch v. Florida Department of Highway Safety and Motor Vehicles, 189 So.3d 131 (Fla.2016). I would argue that Futch is instructive of my point. The facts of the case are as follows:

During a traffic stop, Futch allegedly refused to submit to a blood-alcohol test. The Department of Highway Safety and Motor Vehicles (“DHSMV”) suspended Futch’s driver license for one year, effective March 15, 2013. Futch sought review of the driver license suspension. During the administrative review, the hearing officer refused to permit Futch’s counsel to ask more than two questions of Futch’s expert witness. The hearing officer subsequently upheld the suspension. On certiorari review of the administrative decision, the circuit court found thát the hearing officer’s actions denied Futch due process, and invalidated the suspension. On second-tier certiorari review of the circuit court’s decision, the Fifth District agreed with the circuit court that the hearing officer violated Futch’s due process by refusing to allow his expert to testify. However, the Fifth District held that the circuit court was required to remand the case back to DHSMV for another administrative hearing, and “that the circuit court misapplied the law when it directed DHSMV to set aside the suspension and reinstate Futch’s driver’s license.”

Id. at 132. The Florida Supreme Court held in Futch that second-tier certiorari relief was improperly granted by the district court even though the circuit court applied the wrong law thereby granting an improper remedy. While legal error plainly had been committed by the circuit court, it obviously did not constitute a manifest injustice. Id. The instant case is analogous. No other circuit court will be bound by the erroneous decision of the circuit below should it remain standing. While it is true Respondent Walsh would be given a privilege to which,he is not yet entitled should the circuit court’s decision remain undisturbed, the injury that would be suffered by the Department in reinstating a single driver’s license is not wide-ranging.

In Futch, the Florida Supreme Court reaffirmed that “appellate courts must exercise caution not to expand certiorari jurisdiction to review the correctness of the circuit court’s decision.” 189 So.3d at 132' (quoting Nader, 87 So.3d at 723); see also Heggs, 658 So.2d at 526. Indeed, the Florida Supreme Court “has cautioned the district courts to be prudent and deliberate when deciding to exercise this extraordinary power,” and therefore second-tier certiorari jurisdiction should be invoked only when it is necessary to ensure “essential justice” for the parties and the public. Ivey, 774 So.2d at 682. (quoting Stilson v. Allstate Ins. Co., 692 So.2d 979, 982-83 (Fla. 2d DCA 1997)). It seems to me that it is incumbent on the majority to articulate how the error of the circuit court in not applying Abbey was something more than simple legal error. Like Judge Al-tenbernd, I am concerned that the “flexibility” accorded to the miscarriage of justice standard—to the extent .there is .a standard—“may devour the rule of finality.” State v. Wilson, 690 So.2d 1361, 1364 (Fla. 2d DCA 1997) (Altenbernd, J., dissenting).

As this court has said in State v. Pietrasiuk, 197 So.3d 640 (Fla. 1st DCA 2016), a denial of a writ of certiorari does not necessarily connote agreement with a circuit court’s decision. It is obvious that the circuit court below did err in failing to find Abbey controlling. But, an error below which would be correctable on direct appeal is not necessarily a basis-for second-tier certiorari review. In my view, a district court should be circumspect in granting relief which is only intended for the rare case. At its core, the decision to grant second-tier certiorari relief represents a profound disagreement with the outcome of the circuit court case below. Although understandable, mere disagreer ment with the decision below is not a ground for conferring to ourselves second-tier certiorari jurisdiction. Therefore, I respectfully dissent from the grant of the petition,

2 . Determining whether we agree with Abbey is unnecessary for the disposition of this case. I would note that alcohol and controlled substances (commonly called "drugs”) are different under Florida’s DUI laws, while Abbey put them in the same set. See §§ 316.193-, 1934, Fla. Stat.