ROBERT MACK GALLOWAY, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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Galloway appealed a driver's license suspension to the Circuit Court, which dismissed the appeal on grounds that certiorari was the exclusive remedy. The District Court held that while certiorari is the statutory remedy, an improper remedy should not result in dismissal under Florida's constitutional mandate requiring judicial review.
The Circuit Court erred in dismissing the appeal based solely on the use of an improper remedy. Under Fla.Const. Art. V, § 2(a), no cause shall be dismissed because an improper remedy has been sought. The appeal should be treated and considered as a petition for certiorari under Fla.Stat. § 322.31 (1973).
[1] An appeal improvidently taken may be treated as a petition for certiorari.
[2] A cause shall not be dismissed because an improper remedy has been sought, consistent with constitutional mandates for judicial review.
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Join FLexlaw to unlock all legal intelligence“A party is afforded his 'day in court' with respect to administrative decisions when he has a right to a hearing and has the right to an appeal to a judicial tribunal of the action of an administrative body.”
Establishes the principle that judicial review is a fundamental right in administrative proceedings
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Join FLexlaw to unlock all legal intelligenceGalloway's driver's license was suspended by the county court in Pinellas County pursuant to Fla.Stat. § 322.261 (1973). He appealed the suspension or…
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MANN, Judge (Ret.).
Galloway’s driver’s license was suspended pursuant to Fla.Stat. § 322.261 (1973) in the county court for Pinellas County. He appealed the order of suspension to the Circuit Court which dismissed the appeal on motion on the ground that certiorari was the only appropriate remedy relying on Akins v. State, Fla.App. 2d 1971, 249 So. 2d 778. The brief reported order in Akins has been misunderstood. That case related to an attempted appeal to this court from an appellate proceeding in the Circuit Court. It is correct that common law certiorari is the appropriate vehicle for such review. Dresner v. Tallahassee, Fla.1964, 164 So. 2d 208. It is also true, contrary to the court’s intimation in Atkins that an appeal improvidently taken may be treated as a petition for certiorari, Blacharski v. Watts, Fla.App. 4th 1972, 268 So. 2d 465. To be the extent that Akins implies to the contrary, we recede from such implication. The question then before us is whether the Circuit Court should have dismissed an appeal when Fla.Stat. § 322.31 denominates certiorari • as the appropriate method of seeking review. We think that in the light of Fla.Const. Art. V, § 2(a), the denial of review in this instance was erroneous. That section, in granting to the Supreme Court the authority for the adoption of rules, specifically provides that those rules must include “a requirement that no cause shall be dismissed because an improper remedy has been sought.” We think the spirit of that constitutional mandate militates against an excessively technical interpretation which would deny judicial review for a simple case of misnomer. Our Supreme Court has recently said:
“A party is afforded his ‘day in court’ with respect to administrative decisions when he has a right to a hearing and has the right to an appeal to a judicial tribunal of the action of an administrative body.” 1
We think the right to judicial review has been improvidently frustrated in this case.
The writ of certiorari is granted and the order of the Circuit Court dismissing the appeal is quashed with directions to treat the appeal as a petition for certiorari within the meaning of Fla.Stat. § 322.31 (1973) in the consideration of which any further objections to the timeliness or appropriateness of review, intimated in respondent’s brief, may be raised in the Circuit Court.
Ordered accordingly.
McNULTY, C. J., and GRIMES, J., concur. . Scholastic Systems, Inc. v. LeLoup, Fla., 307 So. 2d 166, Opinion filed October 24, 1974.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Jasinski v. Austin, 358 So. 2d 877 (Fla. 3d DCA 1978)…de County in an appeal from a final judgment of the County Court of Dade County. We have treated the proceeding before us as a petition for writ of certiorari; see Dresner v. City of Tallahassee, 164 So. 2d 208 (Fla. [*878] 1964); Galloway v. State, 305 So. 2d 278 (Fla. 2d DCA 1974), and have concluded that there was no departure from the essential requirements of law. Petition for cer-tiorari is therefore denied. It is so ordered.…
Authorities Cited
- Scholastic Sys. v. LeLOUP, 307 So. 2d 166 (Fla. 1974)
- Dresner v. City OF Tallahassee, 164 So. 2d 208 (Fla. 1964)
- Blacharski v. Watts, 268 So. 2d 465 (Fla. 4th DCA 1972)
- Hass v. City GAS Co. OF Fla., 249 So. 2d 778 (Fla. 3d DCA 1971)