DEPARTMENT OF PUBLIC SAFETY DRIVER'S LICENSE DIVISION, STATE OF FLORIDA, TALLAHASSEE, FLORIDA, APPELLANT,
v.
JOHN WILLIAM MITCHELL, APPELLEE
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The Department of Public Safety appeals a circuit court's issuance of a mandamus writ requiring reinstatement of Mitchell's driver's license after two DWI convictions. The court reverses, holding that mandamus rights are determined as of the petition filing date, when Mitchell was not yet entitled to license reinstatement, though the court notes Mitchell is now entitled to reinstatement since the statutory suspension period has expired.
The court held that mandamus rights are determined as of the petition filing date, not the writ issuance date. At the petition filing, Mitchell was not entitled to license reinstatement because the statutory 6-month minimum suspension for a second conviction had not expired. The trial court therefore erred in issuing the peremptory writ.
“The right of mandamus as extraordinary remedy is to be determined as of the date the petition for the alternative writ of mandamus was filed.”
Establishes the critical temporal principle that governs when Mitchell's entitlement to mandamus is assessed.
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Join FLexlaw to unlock all legal intelligenceMitchell was arrested twice in January 1962 for driving while intoxicated and convicted on both charges in March 1962 before the Metropolitan Court of…
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The appellee was arrested twice in January, 1962, allegedly for driving while intoxicated. In March, 1962, he was tried before the Metropolitan Court of Dade County and convicted upon both charges. Upon the first conviction, his driver’s license was suspended for a period of 90 days. Upon the second conviction, his driver’s license was suspended ultimately for a period of 90 days. Subsequent to the expiration of the 90-day suspension period from the last conviction, the appellee filed an original proceeding in the nature of mandamus in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, to require the appellant to reissue his driver’s license. The alternative writ was issued and, following the denial of a motion to quash by the appellant, the peremptory writ was issued in September, 1962.
The statute involved is Ch. 322, Fla.Stat., F.S.A., wherein the Legislature has prescribed that upon conviction of the offense of driving while intoxicated the court shall: upon first conviction, suspend the offender’s license for a period of at least 90 days;1 upon a second conviction, shall suspend the offender’s license for a minimum period of 6 months,2 which is purely a ministerial act of the court. See: Smith v. City of Gainesville, Fla. 1957, 93 So.2d 105. The statute further provides that in the event the court, upon conviction, fails to designate the period of the suspension, the department shall consider the license as revoked for a maximum period provided for under the statute relative to the conviction.3
It is apparent from this record that the judge of the Metropolitan Court of Dade County attempted to comply with the provisions of the statute in revoking the offender’s license for the minimum period which, under the circumstances of 2 convictions within a period of 5 years, would be 6 months. The fact that the offender was convicted of the second offense first would not alter the duty of the court, under § 322.28(2), Fla.Stat., F.S.A., relating to successive convictions. Therefore, at the time the alternative writ was issued, there was no absolute right in the appel-lee to secure the return of his driver’s license, the minimum period of 6 months not having expired.
The right of mandamus as extraordinary remedy is to be determined as of the date the petition for the alternative writ of mandamus was filed. See: State ex rel. Catts v. Crawford, 72 Fla. 256, 73 So. 589. Even though it is apparent that at the time the peremptory writ was issued the 6 month period had expired, we hold that the trial judge erred in issuing the peremptory writ when, as a matter of law, the relator was not entitled to the alternative writ. Therefore, we reverse the action of the trial judge in the entry of the peremptory writ, with directions to quash the alternative writ and dismiss the cause. However, it is apparent that at the present time the minimum period prescribed under the statute has expired and the appellee is entitled to the return of his driver’s license; and, in the event the same is not forthcoming from the Department, this opinion is not to be construed as a bar to any action to seek a return of same.
Reversed with directions.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Jackson v. State, 634 So. 2d 1103 (Fla. 4th DCA 1994)…2d 1210 (Fla.1989). In Pulaski the second district affirmed a revocation based on the second conviction classification under the statute, where the two convictions arose out of the same accident, relying on Department of Public Safety v. Mitchell, 152 So. 2d 764 (Fla. 3d DCA 1963). Mitchell, however, involved two convictions for two different accidents occurring in the same month, with the defendant being convicted for the second incident prior to being convicted for the first incident. Mitch [*1105] ell, t…
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Pulaski v. State, 540 So. 2d 193 (Fla. 2d DCA 1989)…ffin v. State, 397 So. 2d 277 (Fla.), cert. denied, 454 U.S. 882, 102 S.Ct. 368, 70 L.Ed.2d 194 (1981). A similar conclusion has been reached with respect to license suspension. In Department of Public Safety, Driver’s License Division v. Mitchell, 152 So. 2d 764 (Fla. 3d DCA 1963), the court attached no significance to the timing of two separate offenses when considering the trial court’s duty to suspend the defendant’s license for a longer period of time based on successive convictions. We see no distincti…
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Hickson v. State of Fla. ex rel. Woodridge Bldg. Corp., 226 So. 2d 233 (Fla. 4th DCA 1969)…ex rel. Houston, Fla.App.1960, 120 So. 2d 459. Since the right to mandamus as an extraordinary remedy is to be determined, as of the date that the relators filed, see Department of Public Safety Driver’s License Division v. Mitchell, Fla.App. 1963, 152 So. 2d 764, and the writ will only lie when there is no other remedy to the relator, inherent in every decision concerning mandamus is whether mandamus was the proper remedy for the relator initially. It is customary in zoning to provide certain guarantees of…
Authorities Cited
- Smith v. City OF Gainesville, 93 So. 2d 105 (Fla. 1957)
- State ex rel. Sidney J. Catts v. Crawford, 72 Fla. 256 (Fla. 1916)