RODOLFO G. ORTIZ, PETITIONER,
v.
THE FLORIDA PAROLE COMMISSION, RESPONDENT
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The Florida Parole Commission had the authority to impose a curfew as a condition of conditional release for crimes committed in 1990.
[1] A petition for writ of prohibition is an incorrect remedy to challenge an action that has already taken place, such as the inclusion of a condition in a release order.
[2] Judicial review of a parole commission's orders is typically accomplished through a petition for writ of mandamus or habeas corpus, or by treating a notice of appeal as a…
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Join FLexlaw to unlock all legal intelligenceRodolfo G. Ortiz committed crimes in 1990 and was released on conditional release. He later committed new crimes in 1996, had his release revoked, and…
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The question before us is whether the Florida Parole Commission1 had the authority to impose a curfew as a condition of conditional release, where the underlying crimes were committed in 1990. We conclude that the answer is yes.
Rodolfo G. Ortiz entered a guilty plea to the offense of robbery in Miami-Dade County Circuit Court case number 90-6933, as well as robbery, kidnapping, and other charges in Miami-Dade County Circuit Court case number 90-13954 (collectively “the 1990 cases”). The crime dates were February and January, 1990, respectively. Defendant-petitioner Ortiz was sentenced to nine years of incarceration. Subsequently he was released on conditional release. See § 947.1405, Fla. Stat. (1989).
In 1996, the defendant committed a new crime in Miami-Dade County case number 96-41769.2 He was found guilty at a jury trial and was sentenced to incarceration. His conditional release was revoked.
The defendant states that in 2008, he was placed on conditional release for all three cases. One of the conditions was “a mandatory curfew where you shall be confined to your residence during the hours from 7:00 p.m. to 7:00 a.m., except for work, treatment needs, and religious and educational activities as verified and approved by your conditional release supervisor.”
The defendant filed a petition for writ of prohibition in the circuit court, contending that the Parole Commission did not have the authority to impose a curfew on him. The trial court denied relief in Miami-Dade County Circuit Court case number 90-6933, and the defendant has appealed.3
We first address a procedural issue. We agree with the Parole Commission that a petition for a writ of prohibition is an incorrect remedy. The defendant is complaining about an action which has already taken place: the inclusion of a curfew as a condition of his conditional release. Prohibition “cannot be used to revoke an order already entered.” State ex rel. Sarasota County v. Boyer, 360 So.2d 388, 392 (Fla.1978).
*943The Parole Commission explains that judicial review of Commission action is usually accomplished through a petition for writ of mandamus or habeas corpus. “[Rjeview of the Commission’s orders remains available by petitions for habeas corpus or mandamus filed in the circuit court.” Richardson v. Fla. Parole Comm’n, 924 So.2d 908, 910 (Fla. 1st DCA 2006). The Commission acknowledges that such a petition can be utilized to challenge a condition imposed by the Commission. We therefore disagree with the order entered below, insofar as it reasoned that the trial court was without jurisdiction to review the legality of a condition imposed as part of a conditional release order.
The defendant filed a notice of appeal. The Florida Supreme Court has explained that in this circumstance, the correct procedure for review in this court is certiorari. Sheley v. Fla. Parole Comm’n, 720 So.2d 216, 217 (Fla.1998); Grace v. Fla. Parole Comm’n, 985 So.2d 1213, 1214 (Fla. 1st DCA 2008). We therefore treat the notice of appeal as a petition for writ of certiora-ri.4
Turning to the merits, we reject the defendant’s argument on authority of the Grace decision, which explains that the Commission’s discretionary authority for imposition of special conditions is found in subsection 947.1405(6), Florida Statutes (1990). Grace, 985 So.2d at 1214-15.
The defendant also argues that the Commission was without authority to place him on conditional release, and maintains that he has completed his sentence. That argument is without merit. The conditional release program was in effect at the time the defendant committed his crimes in 1990. Under section 947.1405, Florida Statutes (1989), release on conditional release is mandatory for inmates who qualify. See Duncan v. Moore, 754 So.2d 708, 710-11 (Fla.2000).
The defendant relies on Starling v. Florida Parole Comm’n, 959 So.2d 753 (Fla. 1st DCA 2007), and King v. Florida Parole Comm’n, 898 So.2d 1100 (Fla. 1st DCA 2005). Those cases are not on point. In those cases the defendants claimed that the Parole Commission imposed the terms of subsection 947.1405(7), Florida Statutes, on defendants who committed their crimes prior to the effective date of subsection 947.1405(7). Neither case involved the question now before us, namely, whether the Commission has discretionary authority to impose special conditions under subsection 947.1405(6), Florida Statutes (1990). The Commission had the authority to enter the order now before us. For the stated reasons, we deny the petition for writ of certiorari on the merits.
Certiorari denied.
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Millennium Diagnostic Imaging Ctr., Inc. v. State Farm Mut. Auto. Ins. Co., 129 So. 3d 1086 (Fla. 3d DCA 2013)…2). The purpose of prohibition is to prevent something rather than to undo something; thus, it cannot be used to revoke an order already entered. State ex rel. Sarasota Cnty. v. Boyer, 360 So. 2d 388, 391-92 (Fla. 1978); Ortiz v. Fla. Parole Comm’n, 15 So. 3d 941, 942 (Fla. 3d DCA 2009). Because prohibition is “preventative and not corrective,” prohibition will not lie to review the circuit court’s discovery order. Boyer, 360 So. 2d at 391-92. We note that even if the order had not yet been entered, the cir…
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Velez v. State, 23 So. 3d 808 (Fla. 2d DCA 2009)…ion 947.1405(6), Florida Statutes (Supp.1990), the Florida Parole Commission “had the discretionary authority to impose special sexual offender conditions on [the petitioner’s] conditional release supervision”); see also Ortiz v. Fla. Parole Comm’n, 15 So. 3d 941, 942 (Fla. 3d DCA 2009) (determining that “the Florida Parole Commission had the authority to impose a curfew as a condition of conditional release, where the underlying crimes were committed in 1990”) (footnote omitted). Affirmed. FULMER and DA…
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Authorities Cited
- Sheley v. Fla. Parole Comm'n, 720 So. 2d 216 (Fla. 1998)
- Duncan v. Moore, 754 So. 2d 708 (Fla. 2000)
- State of Fla. ex rel. Sarasota Cnty. v. Chief Judge Tyrie A. Boyer, 360 So. 2d 388 (Fla. 1978)
- Richardson v. Fla. Parole Comm'n, 924 So. 2d 908 (Fla. 1st DCA 2006)
- Grace v. Fla. Parole Comm'n, 985 So. 2d 1213 (Fla. 1st DCA 2008)
- King v. The Fla. Parole Comm'n, 898 So. 2d 1100 (Fla. 1st DCA 2005)
- Starling v. Fla. Parole Comm'n, 959 So. 2d 753 (Fla. 1st DCA 2007)
- Pro-Art Dental LAB, Inc. v. V-Strategic Grp., LLC, 959 So. 2d 753 (Fla. 4th DCA 2007)