DEPT. OF HIGHWAY SAFETY AND MOTOR VEHICLES

v.

SPERBERG

Third District Court of Appeal

State of Florida

Opinion filed October 10, 2018. Not final until disposition of timely filed motion for rehearing.

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No. 3D18-0551 Lower Tribunal No. 17-79

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State of Florida, Department of Highway Safety and Motor Vehicles,

Petitioner,

vs.

Willis Melvin Sperberg,

Respondent.

A Writ of Certiorari to the Circuit Court for Miami-Dade County, Appellate Division, Bernard S. Shapiro, Spencer Eig, and Jerald Bagley, Judges.

Christie S. Utt, General Counsel, and Mark L. Mason (Tallahassee), Assistant General Counsel, for petitioner.

Stephen M. Zukoff, for respondent.

Before EMAS, FERNANDEZ, and LINDSEY, JJ.

FERNANDEZ, J.

The Department of Highway Safety and Motor Vehicles (the “Department”) petitions this Court for second-tier certiorari review of the circuit court’s order granting a writ of certiorari and quashing the Department’s order of revocation.

For the reasons discussed herein, we grant the petition, quash the circuit court’s order, and remand for further proceedings.

By order of revocation dated February 13, 2017, the Department notified

Willis Melvin Sperberg (“Sperberg”) that his driving privilege was permanently revoked. The order advised that Sperberg could appeal the order within 30 days of its date, by filing a petition for writ of certiorari.¹ Thereafter, Sperberg timely filed a petition for writ of certiorari with the circuit court, arguing that Florida must give full faith and credit to a Virginia order restoring Sperberg’s driving privilege in

Virginia. In response, the Department argued it has statutory authority to permanently revoke Sperberg’s driving privilege, in Florida, based on receipt of records indicating Sperberg has⁴ DUI convictions in Virginia.² The Department attached Sperberg’s uncertified driving transcript to its response. In reply,

Sperberg argued the uncertified driving transcript was inadmissible under the best evidence rule. The circuit court granted the petition for writ of certiorari. The

Department filed the instant petition for writ of certiorari, seeking second-tier certiorari review of the circuit court’s order.

On second-tier certiorari review of a circuit court’s first-tier certiorari review of a judicial/quasi-judicial administrative action, this Court must determine

“whether the circuit court afforded procedural due process and applied the correct law.” Broward Cty. v. G.B.V. Int’l, Ltd., 787 So. 2d 838, 843-44 (Fla.

2001) (citing City of Deerfield Beach v. Vaillant, 419 So. 2d 624, 626 (Fla. 1982)).

These two prongs are “merely expressions of ways in which the circuit court decision may have departed from the essential requirements of the law.” Haines

City Cmty. Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995). This Court “must exercise caution not to expand certiorari jurisdiction to review the correctness of the circuit court’s decision.” Futch v. Fla. Dep’t of Highway Safety & Motor

Vehs, 189 So. 3d 131, 132 (Fla. 2016) (citing Nader v. Dep’t of Highway Safety &

Motor Vehs, 87 So. 3d 712, 723 (Fla. 2012)).

“First-tier” certiorari review at the circuit court level, a review as a matter of right³ and pursuant to Florida Rules of Appellate Procedure 9.030(c)(3) and 9.100,

is a three-pronged review whereby the circuit court must determine: (1) whether procedural due process is accorded, (2) whether the essential requirements of the law have been observed, and (3) whether the administrative findings and judgment are supported by competent substantial evidence. Vaillant, 419 So. 2d at 626; see also G.B.V. Int’l, 787 So. 2d at 843; Heggs, 658 So. 2d at 530.

Florida courts have held that a circuit court, acting in its appellate capacity on first-tier certiorari review, fails to apply the correct law when the circuit court goes beyond the appropriate standard/scope⁴ of review. See, e.g., Miami-Dade Cty.

v. Omnipoint Holdings, Inc., 863 So. 2d 195, 201 (Fla. 2003) (holding that a district court exceeds the proper scope of second-tier certiorari review when it sua sponte addresses issues not raised in any phase of the proceedings); G.B.V. Int’l,

787 So. 2d at 845 (discussing how the circuit court’s application of an independent standard of review constitutes an application of the wrong law and is tantamount to departing from the essential requirements of law). Here, the circuit court’s order disposes with both the scope and standard of review by considering issues not raised by any party in any phase of the proceedings and reweighing evidence.

First, the circuit court addressed issues that neither party raised for the circuit court to review. 5 In doing so, the circuit court relied on Omnipoint

Holdings, 863 So. 2d at 200 (quoting Hormel v. Helvering,⁶ 312 U.S. 552, 556 (1941)). On the contrary, in Omnipoint Holdings, the Florida Supreme Court held that the reviewing district court “exceeded the proper scope of second-tier certiorari review when it, sua sponte,” considered “an issue neither party raised in any phase of the proceedings.” 863 So. 2d at 200-01. Similarly, here, the circuit court exceeded the proper scope of first-tier certiorari review when it, sua sponte,

considered issues neither party raised in any phase of the proceedings (including at the circuit court level).7 Second, in analyzing the unraised issues, the circuit court law were not observed; and that the findings and judgment were not supported by competent substantial evidence violated his due process, we grant review of the Department’s decision because there are exceptional cases or particular circumstances where a reviewing court, like this one, will consider questions of law that were not considered by the agency below where injustice might otherwise result.” (internal quotations and citations omitted).

improperly reweighed evidence. For example, the circuit court referred to the uncertified driving record as “suspect since allowing such a record as evidence risks an unjust result.” Where a circuit court reweighs evidence on first-tier certiorari review, the circuit court has applied an improper standard of review. See

G.B.V. Int’l, 787 So. 2d at 845; Dep’t of Highway Safety v. Baird, 175 So. 3d 363 (Fla. 3d DCA 2015). Thus, we hold that the circuit court failed to apply the correct law when it ventured beyond the appropriate scope of review and applied an improper standard of review.

In keeping with our standard of review, we do not address the correctness of the circuit court’s opinion, and nothing in this opinion shall be construed as such.

For the above reasons, we grant the petition for writ of certiorari and quash the circuit court’s order.

Petition granted, order of the circuit court quashed, and cause remanded for further proceedings.