NICHOLAS ALIX
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Nicholas Alix appealed a hearing officer's decision finding him guilty of unlawful speed, imposing a fine, costs, and requiring an advanced driver improvement class. The Ninth Judicial Circuit affirmed the conviction, finding that Alix failed to preserve issues for appeal and that the hearing officer's conduct did not constitute reversible error.
The court affirmed the conviction, finding that Alix failed to preserve the speeding issue for appeal by not objecting to the charge amendment and by presenting conflicting testimony. The hearing officer's extraneous comments did not rise to the level of prejudicial reversible error, and due process was afforded with essential requirements of law being followed.
[1] An issue is not preserved for appellate review if the party failed to object to the alleged error in the lower tribunal.
[2] A party appealing a denial of a motion for rehearing must include the motion in the appellate record and proffer the evidence that would have been presented.
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Join FLexlaw to unlock all legal intelligence“Appellant neither objected when the charge was amended from failure to obey a traffic control device to unlawful speed at the outset of the hearing nor did he request additional time to prepare.”
Establishes that Alix failed to preserve the issue for appeal by not objecting to the charge amendment.
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Join FLexlaw to unlock all legal intelligenceAlix was charged with failure to obey a traffic control device, which was amended to unlawful speed at the hearing's outset. Alix did not object to th…
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Before POWELL, O’KANE, M. SMITH, J.J.
PER CURIAM.
FINAL ORDER AFFIRMING TRIAL COURT
Appellant Nicholas Alix seeks review of a final disposition order of a hearing officer finding him guilty of unlawful speed, imposing a fine and costs, and requiring attendance at an advanced driver improvement class. The Court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(c)(1)(A). The Court dispenses with oral argument pursuant to Florida Rule of Appellate Procedure 9.320. Appellant neither objected when the charge was amended from failure to obey a traffic control device to unlawful speed at the outset of the hearing nor did he request additional time to prepare. The Court finds that because Appellant did not object below, and he and his witness gave conflicting testimony as to his speed, Appellant failed to preserve the issue on appeal. See Dober v. Worrell, 401 So. 2d 1322 (Fla. 1981). The Court further finds that denial of Appellant’s motion for rehearing was not error. Appellant did not include the motion in the record on appeal and Appellant did not proffer in his brief what further evidence he would have presented had he been granted a rehearing. Although the Court agrees with the statement in Appellee’s brief that the “hearing officer could have handled things better . . .,” the Court does not find that the hearing officer’s extraneous comments rose to the level of prejudicial reversible error.1 The standard of review in this type of proceeding is narrowly limited. See State v. Kirby, 752 Sol. 2d 36, 37 (Fla. 5th DCA 2000). The Court concludes that due process was afforded, essential requirements of the law were followed, and the decision was supported by substantial, competent evidence. Based on the foregoing, it is hereby ORDERED AND ADJUDGED that the Final Judgment, rendered October 5, 2009, is AFFIRMED.
DONE and ORDERED at Orlando, Florida this __27___day ________October_____,
2010.
/s/
ROM W. POWELL Senior Circuit Judge
/s/
/s/
JULIE H. O’KANE
MAURA T. SMITH Circuit Judge
Circuit Judge
I HEREBY CERTIFY that a true and correct copy of the foregoing order was furnished via U.S. mail on this 27 day of October , 2010, to the following: Nicholas P. Alix, 7803 Canyon Lake Circle, Orlando, Florida 32835 and Kimberly A. Gibbs, Assistant General Counsel, DHSMV, Post Office Box 570066, Orlando, Florida 32857.
/s/
Judicial Assistant