# 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 ordergranting 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 has 4 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

1 On second-tier certiorari review, the Department argues that Sperberg could have

challenged the underlying records triggering the order of revocation through an

agency records review procedure, despite no mention of this in the order of

revocation. In keeping with our narrow standard of review, we do not address this

issue.

2 Although the Department includes in its response nominal references to

competent substantial evidence, the entirety of the Department’s response is

confined to its statutory authority to permanently revoke Sperberg’s driving

privilege, in direct response to the issue raised by Sperberg in the petition.

2Department 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 [1] afforded procedural due process and [2] 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

right 3 and pursuant to Florida Rules of Appellate Procedure 9.030(c)(3) and 9.100,

3 Section 322.31, Florida Statutes (2018), provides that “final orders and rulings of

the [Department of Highway Safety and Motor Vehicles] wherein any person is

denied a license, or where such license has been canceled, suspended, or revoked,

shall be reviewable in the manner and within the time provided by the Florida

Rules of Appellate Procedure only by a writ of certiorari issued by the circuit court

in the county wherein such person shall reside, in the manner prescribed by the

Florida Rules of Appellate Procedure, any provision in chapter 120 to the contrary

notwithstanding.” See also § 322.27 (7), Fla. Stat. (2018).

3is 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/scope 4 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

4 See, e.g.

, Denson v. State

, 711 So. 2d 1225, 1228 n.6 (Fla. 2d DCA 1998)

(discussing the interplay between scope of review and standard of review).

5 The circuit court’s opinion, in relevant part : “Although Petitioner does not claim

he was deprived of procedural due process, that the essential requirements of the

4Holdings

, 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).

6 The Florida Supreme Court in Omnipoint Holdings quoted Hormel to distinguish

the two cases. As noted therein, Omnipoint Holdings did “not present the types of

patent injustice considered in Hormel .” Nonetheless, this Court need not address

whether the present case does present such type of patent injustice because the

circuit court’s reliance on Hormel is entirely misplaced. In this case, as explicitly

stated by the circuit court, neither party raised the competence or substantiality of

the evidence as an issue for the circuit court to address. See Omnipoint Holdings

, 863 So. 2d at 200 (discussing the distinction between raising an issue for the first

time on appeal versus never raising the issue at all).

7 We note that even if Sperberg’s arguments, in the reply brief filed with the circuit

court, could be construed as raising issues of competent substantial evidence,

Florida courts have held that in such circumstances, granting the petition on the

new issues raised in the reply brief would deny the Department due process. See

Parker-Cyrus v. Justice Admin. Comm’n

, 160 So. 3d 926, 928-29 (Fla. 1st DCA

2015); Dep’t of Highway Safety & Motor Vehicles v. Dellacava

, 100 So. 3d 234,

236 (Fla. 5th DCA 2012).

5improperly 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.

6