Opinion
No. 3D05-818.
March 29, 2006. Opinion Denying Rehearing and Certifying Conflict October 18, 2006.
Appeal from the Circuit Court, Miami-Dade County, Jose M. Rodriguez, J.
Bennett H. Brummer, Public Defender, and John Eddy Morrison, Assistant Public Defender, for appellant.
Charles J. Crist, Jr., Attorney General, and Michael E. Hantman, Assistant Attorney General, for appellee.
Before FLETCHER, WELLS, and SUAREZ, JJ.
Alicia Rivera appeals the denial of a petition for writ of prohibition in which she sought to prevent the Honorable Rosa F. Figarola, County Court Judge, from presiding over a contempt proceeding. We treat this appeal as a petition for writ of certiorari, which we grant. See Stambaugh v. State, 891 So.2d 1136, 1138 (Fla. 4th DCA 2005) (noting that certiorari lies from a circuit court order denying prohibition against a county court).
On March 13, 2002, Rivera pled guilty in county court to possession of less than 20 grams of marijuana, a first degree misdemeanor, was adjudicated guilty, and was ordered to perform 150 hours of community service at a rate of 15 hours a month. On October 30, 2003, over nineteen months later, the court was notified that Rivera had failed to perform any of the community service hours ordered. A bench warrant and show cause order were issued.
Rivera sought to dismiss the show cause order, arguing that the county court's jurisdiction had expired. The motion was denied as was her petition for writ of prohibition in the circuit court.
We agree with Rivera that the trial court lacked jurisdiction to sanction her for failing to perform public service. Section 921.187(1)(a)10 of the Florida Statutes authorizes a court to order public service as one of a number of alternative dispositions in a criminal case:
(1) The alternatives provided in this section for the disposition of criminal cases shall be used in a manner that will best serve the needs of society, punish criminal offenders, and provide the opportunity for rehabilitation.
(a) If the offender does not receive a state prison sentence, the court may:
. . . .
10. Require the offender to perform a specified public service pursuant to s. 775.091.
See also § 948.01(4), Fla. Stat. (2002) (providing that the length of public service ordered may not exceed the length of "the sentence that could have been imposed if the offender had been committed for the offense or a period not to exceed 2 years, whichever is less").
The maximum amount of time to which Rivera could have been sentenced, and thus ordered to perform public service, was one year. See § 893.13(6)(b), Fla. Stat. (2002) (making possession of less than 20 grams of cannabis a misdemeanor of the first degree punishable under sections 775.082 or 775.083); § 775.082(4)(a), Fla. Stat. (2002) (the maximum sentence for a first degree misdemeanor is "a definite term of imprisonment not exceeding 1 year").
Sections 775.091 and 948.031 "indicate that such service is to be considered either as an extra sanction or as an additional condition of probation." State v. Muoio, 438 So.2d 160, 163 (Fla. 2d DCA 1983); see also State v. Jones, 525 So.2d 512, 513 (Fla. 4th DCA 1988) (suggesting that on remand "if the court decides to continue the public service requirement, it should be made clear that it is a condition of probation in conformity with section 948.031"); § 948.01, Fla. Stat. (2002) (governing "[w]hen court may place defendant on probation or into community control" and providing for duration of public service program). Since it "has long been the rule that `upon expiration of the probationary period the court is divested of all jurisdiction over the person of the probationer unless in the meantime the processes of the court have been set in motion for revocation or modification of the probation,'" we agree that the order denying Rivera's motion to dismiss must be quashed. State v. Hall, 641 So.2d 403, 404 (Fla. 1994) (quoting Carroll v. Cochran, 140 So.2d 300, 301 (Fla. 1962)); see also § 948.04(2), Fla. Stat. (2002) (stating that "[u]pon the termination of the period of probation, the probationer shall be released from probation and is not liable to sentence for the offense for which probation was allowed").
Accordingly, certiorari is granted and this matter remanded to the circuit court to grant prohibition barring further proceedings against Rivera in this case in the county court.
ON MOTION FOR REHEARING
We deny rehearing. However, we certify that our decision is in conflict with Housing Auth. of Tampa v. Burton, 873 So.2d 356, 357 (Fla. 2d DCA 2004).
The State argues that Beshaw v. State, 586 So.2d 1284, 1284 (Fla. 3d DCA 1991) (concluding that "that the proper method of review from a final order of the circuit court denying a petition for writ or prohibition is by appeal"), and State v. Brown, 527 So.2d 207, 208 (Fla. 3d DCA 1987) ("The order of prohibition which concluded the proceeding is thus appealable as a matter of right by the State — as it would be by any other litigant — as an appeal from a final order or judgment."), mandate that the circuit court's order denying the instant petition for writ of prohibition be treated as an appeal from a final order. We disagree.
We find Sheley v. Florida Parole Comm'n, 720 So.2d 216 (Fla. 1998), postdating both Beshaw and Brown, to be dispositive. In Sheley, the Florida Supreme Court addressed district court review of a circuit court order denying a petition for writ of mandamus which, like the instant petition filed in the circuit court below, sought appellate review of a lower tribunal order (there an administrative order). In deciding that the district court properly treated review of the order denying the writ of mandamus as a certiorari rather than an appeal, the Florida Supreme Court stated:
Sheley claims that the district court erred in treating his appeal as a petition for writ of certiorari. He contends that he was entitled to a full review on the merits of his claim rather than a review under the more restrictive standard that applies to petitions for writ of certiorari. We disagree.
Mandamus is an accepted remedy for reviewing an order of the Florida Parole Commission. Griffith v. Florida Parole and Probation Comm'n, 485 So.2d 818 (Fla. 1986). Such petitions are properly directed to the circuit courts. Jones v. Florida Dep't of Corrections, 615 So.2d 798 (Fla. 1st DCA 1993). A circuit court order denying relief is reviewable in the district court by certiorari pursuant to Florida Rule of Appellate Procedure 9.030, which provides in relevant part:
(2) Certiorari Jurisdiction.[ ] The certiorari jurisdiction of district courts of appeal may be sought to review
. . . .
(B) final orders of circuit courts acting in their review capacity.
Fla.R.App.P. 9.030(b)(2).
The district court in the present case concluded that once an inmate has had a full review of a Parole Commission order in the circuit court, he or she is unentitled to a second full bite at the apple in the district court:
The inmate has already been afforded the right to review the Commission's action on the merits by filing a petition for writ of mandamus in the circuit court. It would be illogical to provide the inmate a second opportunity for review on the merits by allowing a plenary appeal from the circuit court order. For these reasons, we treat the appeal as a petition for writ of certiorari and we review the case by the limited standard that applies when certiorari is used to review a prior appellate decision.
Sheley [v. Florida Parole Commission], 703 So.2d [1202] at 1206 [(Fla. 1st DCA 1997)].
The district court drew an analogy to two lines of cases: (1) those cases wherein a defendant files a petition for an extraordinary writ in circuit court to review an order of the county court; and (2) those cases governing secondary appellate review of local administrative action. In both lines of cases, the petitioner is unentitled to a second plenary appeal on the merits.
We agree with the district court's reasoning and find its analogies apt. Sheley, we note, cites no statute or rule that would provide authority for a second plenary appeal of a Parole Commission order in the district court, nor does he advance any sound policy reason for formulating such a practice. Further, the district court in the present case reviewed Sheley's petition and determined that "[t]here has been no showing that the circuit court failed to afford the inmate due process of law or that the court departed from the essential requirements of the law." Sheley, 703 So.2d at 1206. We find that Sheley has been afforded extensive judicial review of his claim and has been deprived of no rights.
Based on the foregoing, we hold 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, 720 So.2d at 217-18 (footnotes omitted).
Because the circuit court provided Rivera with a full review of the county court's order denying her motion to dismiss when it considered her petition for writ of prohibition, we have declined to provide a second plenary appeal and have treated her appeal as a petition for writ of certiorari. See Stambaugh v. State, 891 So.2d 1136, 1138 (Fla. 4th DCA 2005)("Certiorari lies from this circuit court order denying prohibition against the county court.")
Rehearing denied; direct conflict certified.