author: TORPY, J. MONACO, J., SAWAYA, J.,

text:
    DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, v. David D. ROBERTS, Respondent.
    No. 5D05-3001.
    District Court of Appeal of Florida, Fifth District.
    March 24, 2006.

      Enoch J. Whitney and Carlos J. Raurell, Miami, for Petitioner.
    William R. Ponall of Kirkconnell, Lindsey, Snure and Yates, P.A., Winter Park, for Respondent.
   TORPY, J.

In this administrative driver’s license suspension case, Petitioner seeks certiorari review of the final order of the appellate panel of the circuit court. Finding that the lower court did not depart from clearly established legal principles, we decline jurisdiction.

The parties agree that the central issue below was whether Petitioner proved that the Florida Highway Patrol trooper made a “legal” stop of Respondent’s vehicle. The stop by police of an occupied automobile for a traffic violation constitutes a “seizure” of “persons” within the Fourth Amendment. Whren v. U.S., 517 U.S. 806, 809-10, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). Therefore, to justify a warrantless seizure, the government must “point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant” the intrusion. Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (emphasis added). Stated differently, to justify a warrantless stop an officer must have an articulable, reasonable suspicion that a violation of the law has occurred. Brown v. State, 719 So.2d 1243, 1245 (Fla. 5th DCA 1998).

To meet its burden of showing that the stop was legal, Petitioner chose to rely solely on the trooper’s charging affidavit, which, in material part, stated: “Observe [sic] the above name [sic] defendant violate F.S.S. 316.187(1) by traveling at 71 mph in a 45 mph speed limit area. When I pulled up behind the defendant and attempted to pull him over he traveled for approximately another tenth of a mile before pulling over.” The circuit court determined that these facts were insufficient to establish an objective basis upon which to conclude that the officer’s suspicions were reasonable. As it did in the proceeding before the lower court, Petitioner relies upon two precedents as authority for its contention that the lower court departed from clearly established legal principles. We agree with the lower court that these precedents can be distinguished.

In State v. Eady, 538 So.2d 96 (Fla. 3d DCA 1989), the officer testified that he saw a vehicle proceeding at “a high rate of speed” and “heard a tire screeching and like a passing gear kicking in.” After the vehicle passed the officer, it continued to speed up before the officer pulled it over. In State v. Joy, 637 So.2d 946 (Fla. 3d DCA 1994), the officer observed a truck cross the intersection in front of him at a high rate of speed. The officer heard the vehicle’s engine “revving,” heard a “whoosh,” and saw dust fly. The officer gave chase and had to accelerate at a high rate of speed to catch the vehicle whereupon he “pace-clocked” the vehicle using his speedometer to confirm it was speeding.

Here, unlike Eady and Joy, the officer’s report provides little or no specifics about the officer’s vantage point when he reached the conclusion that Respondent was speeding. Although he states that he followed Respondent for one-tenth of a mile while attempting to “pull him over,” a fact on which the dissent places great importance, the officer does not assert that Respondent was still speeding at this point or that he “pace-clocked” him during this interval. Absent such an assertion, the duration of the pursuit is not probative of speed. Therefore, based on the limited facts provided in the affidavit, we conclude that reasonable suspicion was lacking. Even if our conclusion as to the application of this nebulous principle is incorrect, however, this is not the proper case for us to exercise certiorari jurisdiction.

In reviewing the final order of the circuit court acting in its review capacity, we are limited to determining whether the circuit court afforded procedural due process and whether it departed from a clearly established legal principle. Ivey v. Allstate Ins. Co., 774 So.2d 679, 682 (Fla.2000). “A decision made according to the form of the law and the rules prescribed for rendering it, although it may be erroneous in its conclusion as to what the law is as applied to the facts, is not an illegal or irregular act or proceeding remediable by certiorari.” Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 525 (Fla.1995) (quoting Basnet v. City of Jacksonville, 18 Fla. 523, 526-27 (1882)). This court cannot review the circuit court’s decision and reach a different result simply because we are not satisfied with the result reached by the circuit court. Ivey, 774 So.2d at 682. Rather, we are required to exercise our discretion to avert the possibility that cer-tiorari will be used as a vehicle to obtain a second appeal. Combs v. State, 436 So.2d 93 (Fla.1983).

The lower court identified the correct legal issue and applied the correct legal precedents. As in the instant case, situations involving reasonable suspicion are necessarily resolved on a case-by-case basis. In the absence of precedent involving closely analogous facts, it cannot be said that the lower court departed from a clearly established principle of law. See Ivey, 774 So.2d at 682 (absent controlling precedent, court cannot conclude that lower court violated “clearly established principle of law”).

PETITION DENIED.

MONACO, J., concurs and concurs specially with opinion.

SAWAYA, J., dissents with opinion.

MONACO, J.,

concurring.

I concur. While I certainly do not disagree with the insightful and scholarly exposition articulated by the dissent concerning the breadth and limits of certiorari jurisdiction, I cannot agree with the conclusion. In my view this case does not present an appropriate opportunity for us to exercise our second-tier certiorari jurisdiction, and we should resist the temptation.

Both the majority opinion and the dissent have properly described our confined second-tier certiorari review. We are limited to determining whether the circuit court afforded procedural due process in conducting its first-tier review, and whether the circuit court departed from a clearly established legal principle. See Ivey v. Allstate Ins. Co., 774 So.2d 679, 682 (Fla.2000). The focus of my attention rests on the issue of whether the circuit court departed from a clearly established legal principle. I cannot say that it did. Rather, this case appears to me to be no more than a “second appeal” of the kind cautioned against by the Supreme Court in Ivey.

That there is no clearly established law governing the present circumstance is perhaps best illustrated by the fact that my two colleagues have come to diametrically opposite conclusions concerning the law applicable to the facts in this case. There simply does not appear to be any controlling case law, rule of court, statute or constitutional law that mandates a conclusion one way or the other. See Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885 (Fla.2003). I conclude, therefore, that we should not exercise our certiorari jurisdiction in this case.

If we were compelled to review this case, however, I would still agree with the majority opinion. The police officer’s report is woefully deficient in its factual recitation. Rather than supply a factual basis for the actions taken, the report gives us only conclusions. We may conjecture at length about how the officer arrived at the precise conclusion that Mr. Roberts was traveling at 71 miles per hour, but we simply do not know. While the officer says that Mr. Roberts drove for another tenth of a mile before he pulled over, we do not know whether the officer was pace clocking him, or any other of the circumstances that led the officer to make this comment. If the State is going to rely on written affidavits to support license suspensions, then the affidavits ought to have sufficient factual information to assure those acting on the writings that due process has been satisfied. Speculation should never be sufficient in place of facts.

Accordingly, I concur in the majority opinion.

SAWAYA, J.,

dissenting.

The majority opinion holds that a police officer who observes an individual traveling 71 mph in a 45 mph speed zone and follows that individual for a tenth of a mile before pulling him over to issue a traffic citation for speeding does not have probable cause to stop the vehicle to issue the citation. I believe that this is erroneous and I totally reject it.

Factual and Procedural Background

This holding arises out of proceedings instituted by Roberts pursuant to sections 322.2615(6), (7), and (15) and section 322.31, Florida Statutes (2003), to determine whether his driver’s license was properly suspended after he refused to submit to a breath test. Section 322.2615(7)(b) provides that at such a hearing, the hearing officer is confined to determining four issues by a preponderance of the evidence, one of which is whether the arresting law enforcement officer had probable cause to believe that the person was driving under the influence of alcoholic beverages. § 322.2615(7)(b), Fla. Stat. (2003). These issues may be resolved based on documents submitted, which in the instant case included the citation for DUI, the officer’s arrest affidavit, and the refusal forms. § 322.2615(11), Fla. Stat. (2003). The majority fails to recognize what this court recognized many years ago, which is that the principal features of the procedure established by section 322.2615 are that: 1) “the burden of proof is by a preponderance of the evidence”; and 2) “submission of the law enforcement officer’s written report to the hearing officer is enough to sustain the burden.” Dep’t of Highway Safety & Motor Vehicles v. Stewart, 625 So.2d 123, 124 (Fla. 5th DCA 1993). This procedure “places on the suspendee the burden to call all witnesses, including the arresting officer, in order to rebut the state’s prima facie case.” Id.

Although Roberts did not attend the hearing, call any witnesses, or introduce any evidence, his attorney did attend and his sole argument was that the officer did not have probable cause to stop the vehicle to issue the traffic citation for speeding and, therefore, did not have probable cause to arrest Roberts for driving under the influence of alcohol. Roberts did not contest any other issue.

The affidavit of the officer, which was introduced into evidence at the hearing, provides as follows:

Observe[d] the above named defendant violate F.S.S. 316.187(1) by traveling at 71 mph in a 45 mph speed limit area. When I pulled up behind the defendant and attempted to pull him over he traveled for approximately another tenth of a mile before pulling over. The defendant’s] breath smelled of an alcoholic beverage as I spoke with him. When I asked the defendant to step out of the vehicle his balance was unsteady. His eyes were blood shot and glassy. His balance was unsteady as I spoke to him outside the vehicle on the south shoulder of State Road 50. I asked the defendant if he had been drinking tonight and he stated he had. Next I asked if he would submit to some Field Sobriety Exercises to determine if [he] was under the influence he said that he would. I then read him his rights and he told me that he understood his rights and would do the exercises. The first exercise I requested him to do was the walk and turn. On steps number 4, 5, 6, 8, and 9 he stepped off to the side to regain his balance. Also after stepping off on step 9 I asked him to continue but he refused. I then place[d] him under arrest for Driving Under the Influence. At the breath center the defendant refused to take a breath test to determine if his blood alcohol level was above the legal limit.

(Emphasis added).

The hearing officer concluded that the facts alleged in the affidavit established by a preponderance of the evidence that the officer had probable cause to stop Roberts and issue him a traffic citation for speeding and to arrest Roberts for driving under the influence. Roberts requested cer-tiorari review in the circuit court, which quashed the hearing officer’s order. The circuit court’s opinion provides in pertinent part:

While the Department is correct in asserting that an officer may stop a vehicle based on his visual or aural perceptions, Officer Beck did not indicate in his charging affidavit that he based his determination of speeding on his visual or aural perceptions....
In the instant case, the charging affidavit states that Officer Beck observed “the above named defendant violate F.S.S. 316.187(1) by traveling 71 mph in a 45 mph speed limit area.” There are no other facts in the charging affidavit describing how Officer Beck determined that Petitioner was speeding or indicating that Officer Beck was using radar, laser, a pace clock, or a visual estimate to calculate the speed of the Petitioner’s vehicle. Additionally, Officer Beck did not testify at the hearing. Thus, the documentary evidence was the only evidence available to the hearing officer.
... Because the charging affidavit fails to contain sufficient facts describing how Officer Beck reached the conclusion that the Petitioner was speeding, it seems that the record lacks competent substantial evidence that Petitioner was lawfully stopped and arrested. As a result, it appears that the Petition for Writ of Certiorari should be granted.

The issue to be resolved is whether the circuit court violated clearly established principles of law regarding probable cause, resulting in a miscarriage of justice when it held that substantial competent evidence does not support the hearing officer’s finding of probable cause because the police officer’s affidavit does not specify exactly how he calculated the speed, i.e., with radar, laser, pace clock, or visual estimate. Because this issue is necessarily framed by the standard of review, I will briefly discuss the appropriate standard that must be applied by this court and the circuit court.

Standard of Review

The standard of certiorari review the circuit court must apply is limited to a determination of: “(1) whether procedural due process is accorded; (2) whether the essential requirements of law have been observed; and (3) whether the administrative findings and judgment are supported by competent substantial evidence.” Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 530 (Fla.1995). “[T]he circuit court functions as an appellate court, and, among other things, is not entitled to reweigh the evidence or substitute its judgment for that of the agency.” Id.; see also County of Volusia v. City of Deltona, 925 So.2d 340 (Fla. 5th DCA 2006); Dep’t of Highway Safety & Motor Vehicles v. Kurdziel, 908 So.2d 607, 609 (Fla. 2d DCA 2005).

The scope of this court’s second-tier review is limited to determining whether the circuit court: 1) afforded procedural due process; and 2) applied the correct law. Heggs; Kurdziel. Second-tier certiorari review is simply another way of deciding whether the lower court “departed from the essential requirements of the law.” Heggs, 658 So.2d at 530; see also Kurdziel; Dep’t of Highway Safety & Motor Vehicles v. Mowry, 794 So.2d 657 (Fla. 5th DCA 2001). A ruling constitutes a departure from the essential requirements of law when it amounts to “ ‘a violation of a clearly established principle of law resulting in a miscarriage of justice.’ ” Tedder v. Florida Parole Comm’n, 842 So.2d 1022, 1024 (Fla. 1st DCA 2003) (quoting Combs v. State, 436 So.2d 93, 96 (Fla.1983)); see also Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885 (Fla.2003); Heggs, 658 So.2d at 528; Mowry. Clearly established principles of law “can derive from a variety of legal sources, including recent controlling case law, rules of court, statutes, and constitutional law. Thus, in addition to case law dealing with the same issue of law, an interpretation or application of a statute, a procedural rule, or a constitutional provision may be the basis for granting certio-rari review.” Kaklamanos, 843 So.2d at 890. As I will next explain, competent substantial evidence supports the hearing officer’s finding of probable cause in the instant case.

Probable Cause for the Stop was Established by Competent Substantial Evidence

When applied by a reviewing court, the term competent substantial evidence refers to a standard of review rather than a standard of proof. In the context of appellate review, courts have consistently held that “[competent, substantial evidence is ‘such evidence as -will establish a substantial basis of fact from which the fact at issue can reasonably be inferred....’” It is “such relevant evidence as a reasonable mind would accept as adequate to support a conclusion.” The question is not whether substantial competent evidence exists in the record to support a conclusion contrary to the one reached by the hearing officer; the question is whether there exists in the record substantial competent evidence to support the hearing officer’s conclusion, even when contrary inferences can be drawn from the evidence.

It is beyond doubt that the uncontro-verted facts alleged in the police officer’s affidavit, that he observed Roberts traveling 71 mph in a 45 mph speed zone and that he followed him for a tenth of a mile, clearly and directly establish that Roberts was speeding and provided the police officer with probable cause to stop Roberts and issue him a citation without the necessity of drawing inferences. Certainly this is evidence that a reasonable mind would accept as adequate to support the conclusion that Roberts was speeding. But even if these facts were not sufficient by themselves, they certainly form a substantial basis of fact from which it can reasonably be inferred that Roberts was exceeding the speed limit and that the officer had probable cause to stop him for a traffic offense. Rather than apply the proper standard of.review, the circuit court erroneously applied a standard of proof by requiring evidence of how the exact speed was calculated. Moreover, I believe that the error was compounded by requiring proof beyond and to the exclusion of every reasonable doubt. Not only did the circuit court erroneously fail to apply the correct standard of review, it erroneously failed to apply general principles of probable cause.

Firmly established principles of law require that: 1) probable cause must be based on facts and circumstances analyzed from the officer’s knowledge, special training, and practical experience; 2) probable cause is often based on reasonable inferences drawn from the facts and circumstances of the particular case; 3) because probable cause is a matter of practicalities and not technicalities, an officer should take a realistic view of the facts when determining whether probablé cause exists; and 4) probable cause does not have to be established with the same standard of conclusiveness and probability required to prove beyond a reasonable doubt the facts upon which a conviction is based. See Walker v. State, 707 So.2d 300 (Fla.1997); Dep’t of Highway Safety & Motor Vehicles v. Whitley, 846 So.2d 1163 (Fla. 5th DCA), review denied, 858 So.2d 333 (Fla.2003); Blue v. State, 837 So.2d 541 (Fla. 4th DCA 2003); Dep’t of Highway Safety & Motor Vehicles v. Silva, 806 So.2d 551 (Fla. 2d DCA 2002); Seago v. State, 768 So.2d 498 (Fla. 2d DCA 2000); Dep’t of Highway Safety & Motor Vehicles v. Smith, 687 So.2d 30, 33 (Fla. 1st DCA 1997); Dep’t of Highway Safety & Motor Vehicles v. Favino, 667 So.2d 305 (Fla. 1st DCA 1995); State v. Riehl, 504 So.2d 798, 800 (Fla. 2d DCA), review denied, 513 So.2d 1063 (Fla.1987). When determining whether probable cause is supported by substantial competent evidence, the circuit court must consider “all the factors and circumstances known to the investigative officer in making a probable cause determination.” State, Dep’t of Highway Safety & Motor Vehicles v. Brass, 906 So.2d 1224, 1225 (Fla. 1st DCA 2005).

Based on a proper application of these general principles of law, I find the circuit court’s conclusions and findings contained in its opinion remarkable for a number of reasons. First, the circuit court concludes that the officer did not base his determination of speeding on his visual or aural perceptions. This overlooks the fact that the officer stated in the affidavit that he “observed” Roberts speeding. Second, the circuit court concludes that “[tjhere are no other facts in the charging affidavit describing how Officer Beck determined that Petitioner was speeding or indicating that Officer Beck was using radar, laser, a pace clock, or a visual estimate to calculate the speed of the Petitioner’s vehicle.” This conclusion totally ignores the fact that the officer stated in his affidavit that he actually followed Roberts for a tenth of a mile before Roberts pulled his vehicle over. In fact, nowhere in the circuit court’s opinion is this fact even mentioned and it is clear that the circuit court simply failed to consider it.

Equally remarkable is the conclusion that competent substantial evidence does not exist to establish probable cause for the stop because the officer did not specifically testify that he used radar, pace clock, or laser to determine the exact speed. This conclusion is clearly erroneous because it disregards the well-established principle that probable cause does not have to be established with the same standard of conclusiveness and probability required to prove beyond a reasonable doubt the facts upon which a conviction is based. Walker; see also Seago, 768 So.2d at 500 (“Facts constituting probable cause need not meet the standard of conclusiveness and probability required to support a conviction.”); Smith; Favino; State v. Joy, 637 So.2d 946 (Fla. 3d DCA 1994); State v. Eady, 538 So.2d 96 (Fla. 3d DCA 1989). The circuit court also disregards the general principle that probable cause is not a matter of technicalities and that an officer is required to take a realistic view of the facts as he perceives them.

Hence, the exact measuring device used to calculate the precise speed of the vehicle is a matter of fact that must be proven beyond a reasonable doubt in a traffic hearing to determine whether Roberts was, in fact, guilty of exceeding the speed limit and by how much; this is not a fact that must be proven to establish probable cause to initially stop the vehicle. Joy; Eady. Specifically, evidence relating to the device used to measure the speed of the vehicle is generally a condition precedent to admitting the exact speed into evidence. Here, the affidavit providing the exact speed was admitted into evidence without objection from Roberts and introduction of the exact speed is certainly not an issue before us. Therefore, I do not believe that evidence of the exact measuring device is necessary to establish probable cause here. Furthermore, Roberts had the right to call the officer as a witness and cross-examine him on this point, but he chose not to.

The decisions in Joy and Eady are directly on point, and I find unavailing the majority’s attempt to distinguish these decisions from the instant case by asserting that the officer’s affidavit in the instant case offers little or no specifics on the officer’s vantage point and lacks an assertion by the officer that Roberts was still speeding when he followed him for the tenth of a mile before stopping him. These assertions are not distinguishing features, and even if they could be called that, they are nothing more than distinctions without a difference. Joy and Eady clearly hold that the officer’s observations — either visual or aural — of unlawful speed are sufficient to establish probable cause to stop a vehicle for speeding and that the necessity of testimony establishing exactly how fast the vehicle was traveling or how the speed was calculated — pace clock, radar, or otherwise — is a matter of proof at a traffic hearing to determine whether the speeding infraction is proven beyond a reasonable doubt.

In Eady, a police officer on routine patrol saw a vehicle proceeding at “a high rate of speed” and “heard a tire screeching and like a passing gear kicking in.” Eady, 538 So.2d at 97. The officer pulled the vehicle over and arrested the defendant, but later testified in court that “he could not be ‘sure’ the defendant was exceeding the speed limit....” Id. (emphasis added). The district court held that probable cause for the stop was established and reversed the suppression order. The court stated:

There is no question that neither proof beyond a reasonable doubt so as to justify a conviction nor even probable cause to believe that a traffic offense has been committed is required to support a police stop on that basis. Instead, only a simple “founded” or “reasonable” suspicion of a violation based on the officer’s visual or aural perception is necessary. See Bailey v. State, 319 So.2d 22 (Fla.1975); State v. Cobbs, 411 So.2d 212 (Fla. 3d DCA 1982).

Id. In the instant case, the officer stated in his affidavit that he observed Roberts traveling 71 mph in a 45 mph zone (a high rate of speed to be sure) and followed Roberts for a tenth of mile; unlike Eady, the officer never stated that he was not sure that Roberts was speeding. If the facts in Eady support a reasonable and founded suspicion of a traffic violation based on the officer’s visual perception, then surely the facts in the instant case do. Clearly, Eady supports the hearing officer’s finding of probable cause in the instant case.

In Joy, the significant fact is that the officer followed the defendant and pace-clocked his speed with the officer’s speedometer. One of the issues in the suppression hearing was whether the initial stop for speeding was proper when the facts indicated that the speedometer was not certified to be properly calibrated to show the exact speed of the vehicle. The circuit court held that the officer’s opinion as to the speed of the vehicle was inadmissible to show excessive speed but was admissible to show that the stop was founded on a reasonable suspicion. The district court held that the fact that the speedometer was not calibrated did not matter because the officer’s visual and aural observations of the speed were sufficient to establish a reasonable suspicion to stop the vehicle for speeding without the necessity of introducing the exact speed. Unlike the facts in Joy, the officer in the instant case testified to an exact speed and the precise distance Roberts was followed.

I believe that all of the facts and circumstances considered by the hearing officer, and the reasonable inferences to be drawn therefrom, clearly establish by competent substantial evidence that the officer, based on his knowledge, training, and experience, observed the speed of Roberts’ vehicle and had ample opportunity to accurately calculate the speed before and during the time that he followed Roberts for a tenth of a mile. Hence, it was established by competent substantial evidence that the police officer had probable cause to stop Roberts for speeding and arrest him for driving under the influence of alcohol. In order for the circuit court to find otherwise, it necessarily ignored or failed to consider “all the factors and circumstances known to the investigative officer in making a probable cause determination,” Brass, 906 So.2d at 1225, and all obvious implications and reasonable inferences to be drawn therefrom. Clearly the circuit court failed to apply the correct law and the proper standard of review.

Certiorari Review by This Court is Appropriate to Quash the Circuit Court’s Decision

In second-tier certiorari review cases, if the district court finds that the circuit court improperly applied the standard of review, a departure from the essential requirements of law has occurred that requires issuance of the writ to correct the miscarriage of justice. Kurdziel; see also Dep’t of Highway Safety & Motor Vehicles v. Friend, 837 So.2d 1071 (Fla. 1st DCA 2003); Favino. The district courts uniformly hold that the circuit court incorrectly applies the standard of review when the district court determines from the record that the hearing officer’s findings, which are overturned or rejected by the circuit court, are supported by competent substantial evidence. In such instances, the district courts hold that the circuit court applied the wrong law and grant the writ to correct the error. In Favino, for example, the hearing officer’s order concluded that probable cause was established for the respondent’s arrest for DUI and that the respondent’s license should be suspended for refusal to submit to a breath test. The circuit court disagreed and quashed the order, concluding that probable cause was not established by competent substantial evidence. The district court examined the record and found that competent substantial evidence did exist to support the hearing officer’s conclusion, granted the writ, and quashed the circuit court’s order. The court explained:

The hearing officer found by a preponderance of evidence that such probable cause existed, and there was competent, substantial evidence to support that finding.
The circuit court, by rejecting the hearing officer’s findings when there was competent, substantial evidence in the record to support these findings, necessarily reweighed the evidence and substituted his judgment for that of the hearing officer. This the circuit court was not permitted to do. The Department’s hearing officer is “the trier of fact [and is] in the best position to evaluate the evidence.... ” Department of Highway Safety and Motor Vehicles v. Satter, 643 So.2d 692 (Fla. 5th DCA 1994), rev. denied, 651 So.2d 1195 (Fla.1995). By failing to apply the correct standard of review, the circuit court failed to apply the correct law. Skaggs-Albertson’s v. ABC Liquors, Inc., 363 So.2d 1082 (Fla.1978); City of West Palm Beach Zoning Board v. Education Development Center, Inc., 504 So.2d 1385 (Fla. 4th DCA 1987); Ford Motor Co. v. Kikis, 401 So.2d 1341 (Fla.1981).
We are fully cognizant of our limited scope of review in the instant case. Our consideration of the instant case is confined to two inquiries: whether the circuit court afforded procedural due process and whether the circuit court applied the correct law. Haines City Community Development v. Heggs, supra; Education Development Center, Inc. v. City of West Palm Beach Zoning Board of Appeals, supra [541 So.2d 106 (Fla.1989)]. We have determined that the circuit court did indeed fail to apply the correct law by failing to apply the correct standard of review. City of Deerfield Beach v. Vaillant, supra [419 So.2d 624 (Fla.1982) ]; see also, Dept. of Highway Safety and Motor Vehicles v. Riggen, 654 So.2d 221 (Fla. 1st DCA 1995).

Favino, 667 So.2d at 309. In Friend, another case similar to the instant case, the court held:

The petitioner seeks review of a circuit court decision granting certiorari and setting aside an administrative order suspending the respondent’s driver’s license. We conclude that the findings of fact made by the hearing officer are supported by competent substantial evidence. The only issue in dispute was whether the officer had probable cause to arrest the respondent for driving under the influence of alcohol and the record contains at least some evidence that he did. The circuit court applied the wrong standard of review in rejecting this evidence. See Department of Highway Safety and Motor Vehicles v. Favino, 667 So.2d 305 (Fla. 1st DCA 1995). Hence we must grant the present petition for writ of certiorari. The decision of the circuit court is quashed and the administrative order suspending the respondent’s driver’s license is reinstated.

Friend, 837 So.2d at 1071-72; see also State, Dep’t of Highway Safety & Motor Vehicles v. Prue, 701 So.2d 637, 638-39 (Fla. 2d DCA 1997).

This court consistently applies this reasoning. For example, in Department of Highway Safety & Motor Vehicles v. Swegheimer, 847 So.2d 545 (Fla. 5th DCA 2003), a case strikingly similar to the instant case, the respondent requested a formal hearing, contending that his license was improperly suspended. The hearing officer reviewed the probable cause affidavit that alleged that the respondent committed the offense of DUI at “W/B SR 400/ SR 414, Maitland, FI. 32751.” The respondent asserted that the affidavit failed to establish that the offense was committed within the city limits of Maitland, introduced a map into evidence to support his argument, and argued that because the officer was not within his jurisdiction to stop the respondent, probable cause was not established for the arrest. The hearing officer found that by a preponderance of the evidence, the officer had probable cause for the arrest. The circuit court held competent substantial evidence was not produced to establish probable cause and quashed the hearing officer’s order. The Department sought certiorari review in this court, and we concluded from the record that competent substantial evidence was presented to support the hearing officer’s conclusion that the officer had probable cause for the arrest. In granting the petition for certiorari and quashing the circuit court’s order, we explained:

However, the hearing officer concluded by a preponderance of evidence that the officer had probable cause to arrest Swegheimer for DUI.
On certiorari review, the circuit court held that the officer failed to demonstrate he was within his jurisdiction when he developed probable cause. We conclude that the circuit court failed to apply the correct law. The circuit court’s scope of review is limited to determining (1) whether the agency accorded procedural due process; (2) whether the agency observed the essential requirements of the law; and (3) whether the administrative findings and judgment are supported by competent substantial evidence. Department of Highway Safety and Motor Vehicles v. Currier, 824 So.2d 966 (Fla. 1st DCA 2002). The circuit court misapplied the law by concluding that the officer failed to establish jurisdiction when the affidavit clearly alleged jurisdiction.

Swegheimer, 847 So.2d at 546; see also Dep’t of Highway Safety & Motor Vehicles v. McClane, 891 So.2d 596 (Fla. 5th DCA 2004); Dep’t of Highway Safety v. Dean, 662 So.2d 371 (Fla. 5th DCA 1995).

I also believe that the errors contained in the circuit court’s written opinion are “capable of repetition in other cases,” thereby depriving the Department of the ability to suspend an individual’s driver’s license when probable cause for the initial stop of the vehicle has been clearly established by substantial competent evidence. Dep’t of Highway Safety & Motor Vehicles v. Snelson, 817 So.2d 1045, 1048 (Fla. 2d DCA 2002) (citing Dep’t of Highway Safety & Motor Vehicles v. Anthol, 742 So.2d 813, 813 (Fla. 2d DCA 1999) (“Because the circuit court’s written decision could affect many other administrative proceedings involving the suspension of drivers’ licenses, we grant certiorari relief.”)).

Conclusion

Here, probable cause for the stop had to be established by a preponderance of the evidence, and I believe that the officer’s affidavit clearly establishes that it is more likely than not that the officer observed Roberts speeding and thus the officer had probable cause to stop him to issue him a traffic citation. In concluding that competent substantial evidence was not produced to support that conclusion, the circuit court erroneously disregarded evidence in the record and the reasonable inferences to be drawn therefrom, improperly reweighed the evidence and substituted its findings of fact for that of the hearing officer, improperly distinguished the decisions in Joy and Eady, disregarded or misapplied clearly established principles of probable cause determinations by the courts, and applied a reasonable doubt standard of proof rather than the correct competent substantial evidence standard of review.

Accordingly, the circuit court committed numerous violations of clearly established principles of law resulting in a miscarriage of justice. The petition should be granted and the circuit court’s order quashed. I, therefore, respectfully dissent.

      . When an officer “pace-clocks” a motorist, the officer follows the motorist for a sufficient distance at the same speed and, using the speedometer on the police vehicle, judges the speed of the motorist. Absent speculation, there is no indication here that this officer employed this methodology.

      . Perhaps the Respondent was traveling in the opposite direction in heavy traffic. If this was the vantage point from which the officer claimed to make a capable assessment of speed, he should be working for NASA rather than the highway patrol. The point is that not every "observation” about speed is necessarily one that we should assume is reasonable. Otherwise, the judicial function is rendered nugatory.

      .In dissent, Judge Sawaya argues that jurisdiction is appropriate because this is a case where the lower court improperly reweighed the facts. We disagree. Not only were the facts not reweighed, they were never weighed to begin with. The facts here are, literally, black and white. No witnesses testified; no conflicting facts were presented. This is not a situation where deference need be given to the factfinder due to his superior vantage point. This is simply a case where the deci-sional law must be applied to a given set of facts — a pure question of law. Because Fourth Amendment law is derived from decisions interpreting the Amendment in similar situations, and because the most analogous decisions applicable here are factually distinguishable, certiorari is simply not appropriate.

      . See De Groot v. Sheffield, 95 So.2d 912 (Fla.1957) (en banc); Vichich v. Dep’t of Highway Safety & Motor Vehicles, 799 So.2d 1069, 1073 (Fla. 2d DCA 2001) ("The circuit court in this process performs a 'review'; it does not sit as a trial court to consider new evidence or make additional findings.”); Marion County v. Priest, 786 So.2d 623 (Fla. 5th DCA 2001), review denied, 807 So.2d 655 (Fla.2002).

      . Duval Utility Co. v. Florida Public Serv. Comm'n, 380 So.2d 1028, 1031 (Fla.1980) (quoting De Groot, 95 So.2d at 916); see also C.M. v. Dep’t of Children & Families, 823 So.2d 182, 183 (Fla. 5th DCA 2002) (same); K.E.A. v. State, 802 So.2d 410, 412 (Fla. 3d DCA 2001) (same); State, Dep’t of Highway Safety & Motor Vehicles v. Porter, 791 So.2d 32, 35 (Fla. 2d DCA 2001) ("Given our narrow scope of review, it is beside the point to note that the applicable statute permitted the hearing officer to base his review of the license suspension on the attendant written documents. From these the hearing officer easily inferred that Deputy Cox had observed Porter speeding and crossing the fog line twice while operating his vehicle and that he had passed this information to Deputy Watson, who included it in his reports.”) (emphasis added); G.C. v. Dep’t of Children & Families, 791 So.2d 17, 19 (Fla. 5th DCA 2001).

      . De Groot, 95 So.2d at 916.

      . De Groot; see also Dep’t of Highway Safety & Motor Vehicles v. Kurdziel, 908 So.2d 607, 609 (Fla. 2d DCA 2005); Priest; City of West Palm Beach Zoning Bd. of Appeals v. Educ. Dev. Ctr., Inc., 504 So.2d 1385, 1386 (Fla. 4th DCA 1987) ("The question is not whether, upon review of the evidence in the record, there exists substantial competent evidence to support a position contrary to that reached by the agency. Instead, the circuit court should review the factual determination made by the agency and determine whether there is substantial competent evidence to support the agency’s conclusion.”).

      . The majority, in a footnote, speculates that "[pjerhaps [Roberts] was traveling in the opposite direction in heavy traffic” and that if this was the vantage point of the officer, "he should be working for NASA rather than the highway patrol.” Once again, with all due respect to the majority, the appropriate standard to be applied does not allow for consideration of any unreasonable inferences drawn from mere speculation. Engaging in such speculation requires the majority to "necessarily ignore[] all 'obvious implications’ and reasonable inferences to be drawn from the surrounding circumstances and the arresting officer's observations.” Dep’t of Highway Safety & Motor Vehicles v. Silva, 806 So.2d 551, 554 (Fla. 2d DCA 2002) (emphasis added) (citing Dep't of Highway Safety & Motor Vehicles v. Favino, 667 So.2d 305 (Fla. 1st DCA 1995)).

      . I disagree with the footnote in the majority opinion that states that the circuit court did not reweigh the evidence; it did so by rejecting the hearing officer's findings of probable cause that are clearly supported by competent substantial evidence. As the court in Favino held, "[t]he circuit court, by rejecting the hearing officer's findings when there was competent, substantial evidence in the record to support these findings, necessarily reweighed the evidence and substituted his judgment for that of the hearing officer. This the circuit court was not permitted to do.” 667 So.2d at 309.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Christopher MOORE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-0827.
    District Court of Appeal of Florida, First District.
    June 9, 2006.
    Rehearing Denied Sept. 28, 2006.
    Christopher Moore, pro se, Petitioner.
    Charlie Crist, Attorney General, and Charlie McCoy, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Christopher Moore seeks a writ of prohibition, contending that his motion to disqualify the trial judge was erroneously denied. In response to the petition, the state points out that Moore has now been tried and convicted and has appealed the judgment and sentence in this court’s case number 1D06-0850. We agree that Moore’s remedy is to raise the denial of the motion to disqualify as an issue in the direct appeal and accordingly deny the instant petition without prejudice to petitioner’s right to seek relief in that manner. Although case number 1D06-0850 has been dismissed for appellant’s failure to pay the court’s filing fee or obtain a waiver thereof from the clerk of the lower tribunal, he must make such payment or obtain the waiver and move this court for reinstatement of the appeal.

PETITION DENIED.

BARFIELD, DAVIS, and PADOVANO, JJ., concur.


text:
    C. Michelle COX, as Personal Representative of the Estate of Steven R. Cox, Deceased, for the benefit of Decedent’s Estate and his survivors, C. Michelle Cox, Andrew S. Cox and Lauren M. Cox, Appellant, v. LITTLE SABINE, INCORPORATED, d/b/a Holiday Inn Express, Pensacola Beach, a foreign corporation, Appellee.
    No. 1D05-4608.
    District Court of Appeal of Florida, First District.
    July 26, 2006.
    Rehearing Denied Sept. 28, 2006.
    John W. Frost, II, and Peter W. Van Den Boom of Frost, Tamayo, Sessums & Aranda, P.A., Bartow, for Appellant.
    Roy D. Wasson of Wasson & Associates, Miami, Amicus Curiae, Academy of Florida Trial Lawyers.
    Hinda Klein of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., Hollywood, for Appellee.
    Catherine B. Chapman of Huey, Guil-day, Tucker, Schwartz & Williams, P.A., Tallahassee, and Tracy Raffles Gunn of Fowler, White, Boggs, Banker, P.A., Tampa, Amicus Curiae, Florida Defense Lawyers Association.
   PER CURIAM.

Affirmed. See Sperka v. Little Sabine Bay, Inc., 642 So.2d 654, 654 (Fla. 1st DCA 1994) (finding “no error in the trial court’s ruling that the hotel and its owners had no duty to warn Sperka, a guest of the hotel, of the presence of the concealed sandbar” in the Gulf of Mexico near the Holiday Inn on Pensacola Beach, notwithstanding fact that the hotel was constructed to provide its guests with access to the adjoining beach and gulf, encouraged their use by providing guests with facilities on and near the beach, and advertised its facilities and amenities to attract guests to its hotel).

BENTON, PADOVANO, and LEWIS, JJ., concur.


author: PER CURIAM. HAZOURI, J.,

text:
    Scott JORDAN, Appellant, v. Kenneth Clarence JENNE, II, in his official capacity as Sheriff of Broward County, Appellee.
    No. 4D05-4266.
    District Court of Appeal of Florida, Fourth District.
    July 26, 2006.
    Rehearing Denied Oct. 24, 2006.

      William R. Amlong, Karen Coolman Am-long and Jennifer Daley of Amlong & Am-long, P.A., Fort Lauderdale, for appellant.
    Carmen Rodriguez and Jason Nickerson of the Law Offices of Carmen Rodriguez, P.A., Miami, and Edward A. Dion, General Counsel, Broward Sheriffs Office, Fort Lauderdale, for appellee.
   PER CURIAM.

Appellant, Scott Jordan, appeals the trial court’s final order denying his alternative writ of mandamus, a non-final order granting the defendant Kenneth Jenne’s motion to dismiss the complaint, and a non-final order denying his motion for preliminary injunction. We affirm in all respects; however, we write to address Jordan’s argument on appeal that his termination from employment with the Bro-ward County Sheriffs Office is void ab initio because the committee that recommended his termination violated the Sunshine Act when it convened in private pri- or to issuing its recommendation to the inspector general.

Scott Jordan was employed as a sheriffs deputy with the Broward County Sheriffs Office (BSO). In 2004, pursuant to a subpoena, he appeared before investigators of the Broward County State Attorney’s Office, who were conducting a criminal investigation of BSO’s law enforcement personnel involving allegations that the deputies were falsifying police reports to make it appear as if incidents of crime were down and as if more cases were being solved than actually were. In response to questioning, Jordan admitted that he, at the instruction of a sergeant on the detective squad, cleared several unsolved burglaries by falsely attributing those crimes to a suspect for an unrelated crime.

Jordan was subsequently notified by the Broward Sheriffs Office that he was under investigation by its Office of Professional Compliance and was suspended without pay. Jordan’s case then went before BSO’s Professional Standards Committee (PSC). The record on appeal indicates that the PSC consists of eleven members, including administrative members from the Department of Law Enforcement and Department of Detention and Community Control, a union representative, and non-employee civilians. Meetings of the PSC are not open to the public. When the PSC convenes, it reviews the written investigative report and investigative file prepared by the Office of Professional Compliance and makes a recommendation as to whether the charge will be (1) sustained, (2) not sustained, (3) exonerated, (4) unfounded, or (5) the case should be deferred for more information. Each employee that goes before the PSC is then entitled to a pre-disciplinary conference, at which the employee has the opportunity to present evidence not addressed in the report and give a statement as to why the incident occurred. Prior to the pre-disci-plinary conference, a subject employee is allowed to review the investigation file, in its entirety. Following the pre-diseiplin-ary conference, the captain of the hearing makes a recommendation to the inspector general, a designee of the sheriff and nonvoting member of the PSC, who then makes a determination on final discipline. The inspector general does not just “rubber stamp” the recommendation of the PSC, but has the discretion to concur with the recommendation, send the case back for further investigation, or reject the recommendation and change the discipline.

In Jordan’s case, the PSC convened in private in March 2005 and recommended that the policy violations alleged against Jordan be sustained and that Jordan’s employment with the Broward Sheriffs Office be terminated. There is no indication in the record that the inspector general was present during the PSC’s private meeting. The next month a pre-disciplinary conference was held and Jordan appeared before a three-person pre-disciplinary committee. Following the conference, the inspector general made the final decision to terminate Jordan’s employment based on his violation of the Broward Sheriffs Office policies.

Jordan filed a three count complaint against the Sheriff of Broward County, Kenneth Jenne, for declaratory and injunc-tive relief seeking reinstatement and back pay. He also filed a motion for preliminary injunction. Jordan alleged a violation of Florida’s Sunshine Act under section 286.011, Florida Statutes, and Article I, section 24(b) of the Florida' Constitution because he was not permitted to attend PSC’s committee meeting or given copies of the minutes of the deliberations. Following a hearing, the trial court denied Jordan’s motion for preliminary injunction, finding in part that there was not a substantial likelihood that Jordan would prevail on the merits because the PSC had no decision-making authority, and, therefore, the Sunshine Act did not apply to its meetings. Jordan has appealed this ruling, arguing that the trial court erred in finding that the PSC was not covered by the Sunshine Act.

A trial court’s ruling on a motion for an injunction comes to the District Court of Appeal with a presumption of correctness and will be reversed only upon a showing of a clear abuse of discretion. S. Fla. Limousines, Inc. v. Broward, County Aviation Dep’t, 512 So.2d 1059, 1062 (Fla. 4th DCA 1987). The burden is on the appellant to demonstrate such an abuse of discretion. Id.

The issue on appeal is whether meetings of the PSC, which deliberated on the subject of Jordan’s discipline and issued a recommendation to the inspector general who then made the final decision on termination, fall within the ambit of the Sunshine Act. The applicable constitutional and statutory provisions of Florida’s Sunshine Law are Article I, section 24(b) of the Florida Constitution and section 286.011, Florida Statutes (2005). Article I, section 24(b) provides as follows:

All meetings of any collegial public body of the executive branch of state government or of any collegial public body of a county, municipality, school district, or special district, at which official acts are to be taken or at which public business of such body is to be transacted or discussed, shall be open and noticed to the public and meetings of the legislature shall be open and noticed as provided in Article III, Section 4(e), except with respect to meetings exempted pursuant to this section or specifically closed by this Constitution.

Section 286.011 provides as follows:

All meetings of any board or commission of any state agency or authority or of any agency or authority of any county, municipal corporation, or political subdivision, except as otherwise provided in the Constitution, at which official acts are to be taken are declared to be public meetings open to the public at all times, and no resolution, rule, or formal action shall be considered binding except as taken or made at such meeting. The board or commission must provide reasonable notice of all such meetings.

We find our decision in Dascott v. Palm Beach County, 877 So.2d 8 (Fla. 4th DCA 2004), to be instructive, where this court examined the Sunshine Act in connection with an action for declaratory relief against the county by a county employee who alleged that her termination violated the Sunshine Act. In Dascott, the appellant was employed as a senior secretary in the Senior Services Division of the Palm Beach County Department of Community Services. Id. at 9. The appellant was served with a notice of intent to terminate her employment for a violation of the County Merit System Rules. Id. The notice of intent specifically advised appellant that the decision as to whether to terminate her employment would be a “joint decision” of the conference panel, consisting of her department head and representatives of the Personnel Director and the Director of the Office of Equal Opportunity. Id. During the hearing, the appellant was questioned by members of the panel, and her attorney questioned appellant’s supervisor and another witness. Id. The panel, which included the department head who held the power to terminate appellant, then instructed appellant and her attorney to leave the room while they deliberated in private as to whether the proposed termination action should be upheld or modified. Id. at 10. On motion for rehearing, this Court made it clear that “immediately after the hearing, the panel went into a closed-door session during which the ultimate decision to terminate appellant was made.” Id. at 14. Pursuant to the county rules, the department head made the final decision to uphold the recommended termination. Id.

Following her termination, appellant filed a complaint for declaratory judgment and injunctive relief against the county, claiming that it violated the Sunshine Act by failing to provide public notice of the pre-termination conference and by deliberating in secret. Id. On cross-motions for summary judgment, the trial court ruled in favor of the county; however, this court reversed, concluding that the panel that deliberated on the subject of appellant’s discipline and termination was a “board” or “commission” within the meaning of the Sunshine Act, section 286.011(1), because the panel exercised decision-making authority. Id. at 12. While the County Administrator had the sole authority to discipline or terminate county employees, he delegated that authority to each department head, and the department head shared this authority with other members of the panel. Id. Furthermore, in Dascott, we emphasized the fact that the department head, who had the authority to make the final decision on discipline, deliberated with the panel to reach a “joint decision” as to appellant’s termination:

Nowhere in the rules is any decision-making authority delegated to the committee as a whole. Nevertheless, whether intended by the Board of County Commissioners or not, the department head deliberated with the panel to determine whether to terminate appellant. That was his intent, as set forth in the letter notifying appellant of the pre-ter-mination conference ... The letter further states that if the “joint decision of the conference panel is to uphold her discharge,” appellant may appeal.

Id. at 13.

In addition, as that portion of the Dascott case entitled “On Motion for Rehearing” emphasizes, the decision to terminate was made during the closed meeting. The Dascott court also stated that it was undisputed that the staff gave advice during the closed-door session and that “immediately after the hearing, the panel went into a closed-door session during which the ultimate decision to terminate appellant was made.” Id. at 14. By contrast, in the present case, the meeting was fact-finding only, and no ultimate decision was made in a closed-door session with members of the PSC in attendance. Rather, the inspector general, who made the final determination on discipline, did not deliberate with the PSC but reviewed its recommendation without the presence of the PSC. The inspector general himself then made the ultimate decision and was free to reject the recommendation of the PSC. In Dascott, however, the final decision on termination was a “joint decision” of the pre-termination panel, in that the department head in charge of the panel chose to share his authority to discipline county employees with other panel members and conferenced with the panel.

Because the PSC provided only a mere recommendation to the inspector general and did not deliberate with the inspector general, the ultimate authority on termination, we conclude that the PSC does not exercise decision-making authority so as to constitute a “board” or “commission” within the meaning of section 286.011, and as a result, its meetings are not subject to the Sunshine Act. The PSC served only an advisory function, and although it made recommendations, the inspector general made the ultimate decision to terminate Jordan’s employment with the BSO.

For these reasons, we affirm the trial court’s order denying Jordan’s motion for preliminary injunction as there was no Sunshine violation entitling Jordan to relief.

Affirmed.

GUNTHER and MAY, JJ., concur.

HAZOURI, J., dissents with opinion.

HAZOURI, J.,

dissenting.

I respectfully dissent. I cannot agree with the majority that the facts and circumstances of the instant case are distinguishable from our opinion in Dascott. In Dascott we found that Palm Beach County violated the Sunshine Act by failing to provide public notice of the pre-termi-nation conference and deliberating in secret.

The majority distinguishes Dascott by placing unwarranted emphasis on the fact that in Dascott the notice of intent to terminate specifically advised the employee that the decision as to whether to terminate her employment would be a “joint decision” of the conference panel. Although that is what the notice indicated, the evidence in Dascott clearly indicated that it was not a joint decision and the majority fails to address how the county in Dascott attempted to dispel the notion that the decision to terminate was a joint decision of the members of the panel and the head of the department.

In the county’s motion for summary judgment in Dascott,

it claimed that the employees who deliberated with the department head regarding appellant’s termination did not constitute a committee or panel under the meaning of the Sunshine Act. Attached to the motion were three affidavits. The County Administrator swore that he had the sole power to terminate employees and delegated this responsibility to the head of the department where the subject employee is assigned. The department head’s affidavit averred that he was designated by the County Administrator to attend the pre-termi-nation conference, and it was he that made the decision to terminate appellant. While the department head did discuss the county’s recommendation to terminate her with the other county employees present at the hearing, their input was solely advisory, as he retained sole authority on the issue of termination. A third employee claimed that she was present at the conference and, after appellant left the room, “a short discussion ensued regarding the evidence and argument presented.” She claimed that a vote was not taken on the recommendation because the department head held the sole authority to decide whether to terminate appellant.

Dascott, 877 So.2d at 10.

In Dascott it was the fact that the panel consulted and advised the department head that influenced this court’s decision that it was a violation of the Sunshine Act. We noted:

[wjhile the letter describes a delegation of authority to the panel to terminate appellant, the affidavits filed on behalf of the county indicate that no joint decision was made. Nevertheless, the affidavits suggest consultation and advice. We see little distinction between “advice” and “recommendations” in the context of this pre-termination panel. It appears to us that the conference panel assists in determining whether to terminate an employee.

Id. at 13.

Therefore, the PSC constituted a board or commission within the meaning of section 286.011, because it exercised decision-making authority in both reviewing the employee’s investigative file and in making a recommendation to the inspector general as to the recommended discipline. I would hold that this case is controlled by our decision in Dascott and would reverse the lower court’s determination that Jenne, in his official capacity as the Sheriff of Bro-ward County, violated Florida’s Sunshine Act.


text:
    Fred BUBAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-1183.
    District Court of Appeal of Florida, Fifth District.
    Aug. 1, 2006.
    Rehearing Denied Sept. 7, 2006.

      James S. Purdy, Public Defender, and Christopher Sinclair Quarles, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Tomengo v. State, 864 So.2d 525 (Fla. 5th DCA 2004).

GRIFFIN, THOMPSON and MONACO, JJ., concur.


author: CANADY, Judge. SALCINES, Judge,

text:
    Jose Lucio CHACON, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-84.
    District Court of Appeal of Florida, Second District.
    Aug. 2, 2006.
    Rehearing Denied Oct. 6, 2006.
    Jose Lucio Chacon, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Ap-pellee.
   CANADY, Judge.

Jose Lucio Chacon appeals the denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. The post-conviction court summarily denied four of the five grounds for- relief set forth in Chacon’s motion. We affirm the denial with respect to those four grounds without further comment. The trial court denied the fifth ground — which was based on a claim of newly discovered evidence — after counsel for Chacon informed the court at a status hearing that there was no “viable witness” to support the claim of newly discovered evidence. Because we conclude that Chacon’s counsel effectively abandoned the claim, we affirm the denial of the claim of newly discovered evidence.

Chacon’s claim of newly discovered evidence related to exculpatory statements contained in a letter bearing the signature of “Glenda W.” The court ordered the State to show cause why Chacon was not entitled to relief on his claim of newly discovered evidence, and the State responded that it could not show cause why Chacon was not entitled to an evidentiary hearing. The court then entered an order granting an evidentiary hearing and appointing counsel for Chacon.

At the status hearing — with Chacon present — counsel for Chacon recounted his efforts to investigate the factual basis for the claim of newly discovered evidence and informed the court that there was no “viable witness for Mr. Chacon” because the person believed to be the author of the exculpatory letter had denied writing the letter and had expressed her disagreement with the exculpatory statements in the letter. Counsel further explained to the court that he had advised Chacon that it would be advisable “to withdraw his claim involving this letter.”

The court then asked Chacon whether he understood what counsel had discussed with the court. Chacon responded, “Yes, I understand.” The court observed that “[i]t seems like it would be useless to have a full-blown hearing on this.” Chacon asked, “So how am I going to be able to prove my innocence if that is the only way.” He then launched into a discussion of the proceedings at his trial and a letter from the mother of the victim — not the letter at issue in his claim of newly discovered evidence.

At no point in the status hearing did Chacon in any fashion express his disagreement with his lawyer’s characterization of the evidence related to the claim of newly discovered evidence. Chacon did not inform the court that any witness was available to support his claim. Nor did he request that additional time be afforded to locate a witness to support the claim.

Although in this appeal Chacon has suggested that his lawyer had not correctly identified the author of the letter, Chacon made no such assertion at the status conference. Chacon certainly made clear that he had a continuing desire to prove his innocence, but he acquiesced in his counsel’s concession that no testimonial support was available for the newly discovered evidence claim. Furthermore, Chacon did not express any dissatisfaction with counsel, much less express a desire to discharge counsel and obtain new counsel or proceed pro se.

Given all these circumstances, the only reasonable conclusion is that Chacon abandoned the claim of newly discovered evidence because of the lack of evidence to support the claim. See Vining v. State, 827 So.2d 201, 214 (Fla.2002) (holding that claim was abandoned by postconviction counsel who acknowledged that she was unable to plead the “factual predicate” necessary to prove claim). As the postcon-viction court recognized, it would be an exercise in futility — and a waste of judicial resources — to conduct an evidentiary hearing on the claim of newly discovered evidence after counsel’s unequivocal concession that there was no evidence to support the claim. We therefore affirm the denial of Chacon’s newly discovered evidence claim.

Affirmed.

ALTENBERND, J., Concurs.

SALCINES, J., Dissents with opinion.

SALCINES, Judge,

Dissenting.

I respectfully dissent. The postconviction court reviewed Jose Lucio Chacon’s motion for postconviction relief and concluded that ground five, alleging newly discovered evidence, set forth a facially sufficient claim for relief and that an evi-dentiary hearing was required. Indeed, in its response to the motion, the State conceded that an evidentiary hearing was necessary because the record before the court did not conclusively refute Chacon’s allegations of newly discovered evidence. The evidence at issue was a letter signed by “Glenda W.” which essentially stated that the charges against Chacon had been fabricated by Chacon’s ex-wife. In his motion for postconviction relief, Chacon indicated that the letter was written by his ex-wife’s cousin to a family friend who forwarded it to Chacon.

An order was entered directing that an evidentiary hearing be conducted. In preparation for the evidentiary hearing, a status conference was conducted. At that status hearing, postconviction counsel informed the court that he had hired an investigator who located “the supposed Glenda W. who lived in Alabama.” Counsel stated that when he contacted the woman, she told him she had not written the letter and did not agree with its content. Counsel indicated that he needed to get a handwriting expert to examine the letter to determine if it was, in fact, written by the woman in Alabama and he also needed to conduct a video deposition of the woman. However, counsel then informed the court that he felt like “we’re basically spinning our wheels” because even if it were proven that the letter had been written by the woman in Alabama, she would not be a viable witness for Chacon because she did not agree with the content of the letter. Counsel did not present any evidence other than his unsworn statements to support his allegations. There was no testimony of witnesses or written documentation to support Chacon’s counsel’s assertions that the woman in Alabama was actually the author of the letter. In fact, the woman denied that she had written the letter.

The majority concludes that Chacon abandoned the claim of newly discovered evidence and acquiesced in his counsel’s concession that no testimonial support was available to support his claim. However, the transcript of the status hearing reveals that counsel stated that he had called the conference to put on the record counsel’s concerns about expending further resources “which will ultimately not change the outcome of what decision the Court makes in the end.” Counsel informed the postconviction court that he told Chacon that it would be advisable for him to withdraw his motion. However, when questioned by the court, Chacon still maintained his innocence and did not ask to withdraw his motion. Counsel for Chacon did not thereafter tell the postconviction court that he was withdrawing the motion or otherwise abandoning the motion on behalf of Chacon.

The postconviction court did not make a finding that the motion was abandoned or withdrawn but summarily denied the facially sufficient motion without an eviden-tiary hearing based upon the oral representations of Chacon’s counsel. In my opinion, this was error. “[I]t is fundamental that ... representations by counsel not made under oath and not subject to cross-examination, absent a stipulation, are not evidence.” State v. T.A., 528 So.2d 974, 975 (Fla. 2d DCA 1988). When a rule 3.850 motion claiming newly discovered evidence is denied without an evidentiary hearing, a defendant’s factual allegations must be accepted as true to the extent that they are not refuted by the record. See McLin v. State, 827 So.2d 948, 954 (Fla.2002). An evidentiary hearing is required when the record fails to show conclusively that a defendant is entitled to no relief. Fla. R.App. P. 9.141(b)(2)(D). The post-conviction court and the State both correctly acknowledged that the record did not refute the allegations of newly discovered evidence.

Further, the written order denying relief stated that Chacon’s counsel had informed the court that the letter, which was the subject of the motion, “was actually written and in existence at or before the time of trial in this matter and, therefore, did not constitute ‘newly discovered’ evidence.” The statements made by Cha-con’s counsel at the status hearing at times were unartfully phrased. However, it is clear from the transcript that he did not state that the June 10, 2002, letter from Glenda W. was written prior to or at the time of the 1996 trial. Instead, counsel was referencing Chacon’s ex-wife’s letters which had been written at the time of trial. The postconviction court’s conclusion that the letter from Glenda W. was not newly discovered evidence is not supported by any evidence.

If counsel did not wish to represent Chacon any longer, he should have requested that he be allowed to withdraw and new counsel appointed. In my opinion, the postconviction court should not have summarily denied the facially sufficient motion without conducting an eviden-tiary hearing when nothing supported the denial. The “rule 3.850 motion remains facially sufficient to require an evidentiary hearing.” See Mathews v. State, 870 So.2d 36, 37-38 (Fla. 2d DCA 2003).

I would reverse the order denying relief and direct that an evidentiary hearing be conducted. Only after Chacon is afforded a full evidentiary hearing should we determine that due process has been satisfied.


author: BENTON, J. ERVIN, J.,

text:
    J.M., Appellant, v. FLORIDA AGENCY FOR PERSONS WITH DISABILITIES, Appellee.
    No. 1D06-0183.
    District Court of Appeal of Florida, First District.
    Aug. 8, 2006.
    Rehearing Denied Oct. 4, 2006.

      Alan I. Mishael, Esquire of Alan I. Mi-shael, P.A., Miami, for Appellant.
    Charlie Crist, Attorney General, and Charles M. Fahlbusch, Senior Assistant Attorney General, Fort Lauderdale, for Appellee.
   BENTON, J.

J.M. appeals a “Final Order Denying Petitio'n for Administrative Hearing” in which the Agency for Persons with Disabilities (APD) ruled that J.M. was not entitled to a hearing under section 120.57(1), Florida Statutes (2005), to resolve a dispute arising under section 393.0651, Florida Statutes (2005), stating:

The Office of Appeal Hearings, administratively located [not within the Agency for Persons With Disabilities but] within the Department of Children and Families, was created to provide administrative review of the denial, suspension, or reduction of benefits in those medical assistance and social services programs where a due process proceeding is mandated by federal law. The DD/HCBS Medicaid waiver, while allowing Florida to provide specific services under different circumstances than would be available under State Plan Medicaid, is nonetheless a Medicaid program authorized under Title XIX of the Social Security Act. The DD/HCBS waiver is, therefore, included within the section 120.80(7) exemption, and a Fair Hearing [in contradistinction to a section 120.57 hearing] is the appropriate forum to consider petitioner’s challenge to the Agency’s decision to reduce his benefits.

We reverse APD’s order with directions that J.M. be granted a section 120.57(1) hearing either before APD’s director (the agency head) or before “an administrative law judge assigned by the [Division [of Administrative Hearings].” § 120.57(l)(a), Fla. Stat. (2005).

An autistic and mentally retarded child, J.M. lives in a group home where he re-eeives benefits under a community-based Medicaid waiver program, which APD administers. J.M. was receiving eighteen hours of “residential habilitation” daily when a private vendor under contract to APD reviewed J.M.’s file. Thereafter, APD notified J.M.’s support coordinator that it would approve residential habilitation for J.M. for ten hours a day only. The substance of the parties’ ensuing dispute is, J.M.’s petition alleges, factual: How many hours of “residential habilitation” does J.M. require?

I.

We have jurisdiction to review final agency action. See § 120.68(1), Fla. Stat. (2005) (“A party who is adversely affected by final agency action is entitled to judicial review.”). As is plain from its tenor (and as APD’s counsel confirmed at oral argument), the order under review was intended as the last action APD would take in J.M.’s case. Our jurisdiction is, moreover, routinely invoked to review agency orders denying section 120.57 hearings. See, e.g., Gopman v. Dep’t of Educ., 908 So.2d 1118, 1120-21, 1123 (Fla. 1st DCA 2005) (reviewing denial of a request for formal hearing under section 120.57 where agency asserted other, statutorily prescribed hearing procedures sufficed); Sickon v. Sch. Bd. of Alachua County, 719 So.2d 360, 361 (Fla. 1st DCA 1998) (reviewing denial of a request for formal hearing under section 120.57); Yunker v. Univ. of Fla., 602 So.2d 557, 557 (Fla. 1st DCA 1992) (same). See also Fla. R.App. P. 9.190(b)(2)(2006).

The present case arrives in a very different procedural posture than that in which Ford v. Agency for Persons with Disabilities, 932 So.2d 294 (Fla. 4th DCA 2005), came to the Fourth District. In Ford, final agency action had not been taken: administrative proceedings were ongoing within the Department of Children and Family Services, when Ford filed a motion to transfer the case to the Division of Administrative Hearings. An interlocutory order denied Ford’s motion for transfer. That interlocutory order (and perhaps the notice of a hearing within the Department of Children and Family Services) became the subject of Ford’s appeal. The Fourth District ruled that it did not have jurisdiction to review the denial of the request to transfer because the order was interlocutory and contemplated further proceedings within the Department of Children and Family Services that might eventuate in an order that would render Ford’s petition for review of intermediate agency action moot. Ford had applied directly and exclusively to the Department of Children and Family Services for relief, and never filed a petition with, or obtained any order from, APD.

In contrast, J.M. exhausted the possibility of administrative remedies he (unlike Ford) sought at APD. J.M. presumably had the same opportunity to litigate before a hearing officer at the Department of Children and Family Services as Ford, but any possibility that J.M. might obtain a favorable order from another agency (the Department of Children and Family Services) does not render the unfavorable order he in fact received from APD interlocutory. APD has announced that it will take no further action in the case, unless the order under review is reversed. Administrative proceedings within APD concluded when APD’s final order denied J.M.’s request for a section 120.57 hearing.

II.

“The Administrative Procedure Act presumptively governs the exercise of all authority statutorily vested in the executive branch of state government.” Gop-man, 908 So.2d at 1120. Am agency within the meaning of the Administrative Procedure Act, APD is responsible for administering services related to developmental disabilities as set forth in chapter 398, Florida Statutes. See § 20.197(2), Fla. Stat. (2005) (“The agency shall be responsible for the provision of all services provided to persons with developmental disabilities pursuant to chapter 393, including the ... programmatic management of Medicaid waivers established to provide services to persons with developmental disabilities.”). In particular, APD is responsible for creating an individual support plan for each of its clients, see § 393.0651, Fla. Stat. (2005), and for annual review of these plans. See § 393.0651(7), Fla. Stat. (2005). These obligations encompass responsibility and authority for making determinations of eligibility for clients to receive developmental disability services. See § 393.065(1), Fla. Stat. (2005).

APD’s original determination that J.M. was eligible for developmental disability services is not at issue. After furnishing such services initially, APD conducted a review—acting through a physician employed by Maximus (with which APD contracts to review support plans to ascertain which services are and remain medically necessary)—and then completed a “Determination of Reconsideration Review,” adopting the reduction in J.M.’s residential habilitation hours Maximus proposed. In response to the Determination of Reconsideration Review and the proposed reduction, J.M. filed his request for a formal hearing with APD, asserting that his substantial interests were affected by proposed agency action, and that the validity of the proposed agency action depends on disputed issues of material fact.

Any person substantially affected by an APD decision, concerning eligibility for developmental disability services initially, or concerning subsequent changes in a support plan regarding such services arising from annual reviews thereafter, has the right to a hearing pursuant to section 120.57.

Any client, or any parent of a minor client, or guardian, authorized guardian advocate, or client advocate for a client, who is substantially affected by the client’s initial family or individual support plan, or the annual review thereof, shall have the right to file a notice to challenge the decision pursuant to ss. 120.569 and 120.57. Notice of such right to appeal shall be included in all support plans provided by the agency.

§ 393.0651(8), Fla. Stat. (2005) (emphasis added). With respect to initial eligibility determinations at least, the statute also provides: “Any applicant determined by the agency to be ineligible for developmental services has the right to appeal this decision pursuant to ss. 120.569 and 120.57.” § 393.065(3), Fla. Stat. (2005).

Here, as below, APD contends that, these clear statutory directives notwithstanding, J.M. is not entitled to a section 120.57(1) hearing because the exemption from the obligation to conduct formal administrative hearings set out in section 120.80(7), Florida Statutes, applies. The language creating the exemption provides:

Notwithstanding s. 120.57(l)(a), hearings conducted within the Department of Children and Family Services in the execution of those social and economic programs administered by the former Division of Family Services of the former Department of Health and Rehabilitative Services prior to the reorganization effected by chapter 75-48, Laws of Florida, need not be conducted by an administrative law judge assigned by the division.

120.80(7), Fla. Stat. (2005). We need not decide in the present case the precise scope of the exemption section 120.80(7) creates, because chapter 393 unambiguously calls for administrative hearings pursuant to section 120.57 in cases like J.M.’s. We therefore leave for another day mapping the exemption’s exact contours.

The specific statutes in chapter 393 necessarily control over any general exemption in section 120.80(7), even assuming the exemption provided in 120.80(7) could be read to apply to APD. See §§ 393.065-.0651, Fla. Stat. (2005). See also, e.g., Stoletz v. State, 875 So.2d 572, 575 (Fla.2004) (“ ‘[A] specific statute covering a particular subject area always controls over a statute covering the same and other subjects in more general terms.’ ”) (quoting McKendry v. State, 641 So.2d 45, 46 (Fla.1994)).

The exemption that section 120.80(7) creates applies generally to “hearings conducted within the Department of Children and Family Services in the execution of those social and economic programs administered by the former Division of Family Services of the former Department of Health and Rehabilitative Services,” § 120.80(7), Fla. Stat. (2005), not specifically to services for the developmentally disabled or, indeed, to the APD at all. Chapter 393, on the other hand, does specifically apply to programs for the developmentally disabled and to the Medicaid waiver program that APD is responsible for administering for the benefit of J.M. and others. Chapter 393 specifically provides for hearings pursuant to section 120.57, and authorizes no exceptions.

The rule that “when two statutes are in conflict, the later promulgated statute should prevail as the last expression of legislative intent,” McKendry, 641 So.2d at 46, also supports this result. The first time chapter 393 incorporated a provision entitling an applicant for developmental disability services to a hearing pursuant to section 120.57, was in 1988, see Ch. 88-398, § 7, at 2337, Laws of Fla. (creating section 393.065(3), Florida Statutes (1988)), while the section 120.80(7) exemption can be traced back to the Administrative Procedure Act of 1974. See Ch. 74-310, § 1, at 961, Laws of Fla. Section 393.0651, Florida Statutes, was originally enacted in 1989, and includes the right to a hearing pursuant to section 120.57. See Ch. 89-308, § 10, at 2012-14, Laws of Fla. Because the statutes providing the right to a hearing pursuant to section 120.57 were enacted after the exemption now found in 120.80(7) was created, the statutes providing for section 120.57 hearings control. Section 120.80(7) has no application here.

III.

APD must grant a formal hearing pursuant to section 120.57(1) when material facts are in dispute and an applicant or client is “determined by the agency to be ineligible for developmental services,” § 393.065(3), Fla. Stat. (2005), if the applicant or client “is substantially affected by the ... initial family or individual support plan, or the annual review thereof.” § 393.0651(8), Fla. Stat. (2005).

Reversed and remanded.

BROWNING, J., concurs.

ERVIN, J., concurs with opinion.

ERVIN, J.,

concurring.

I concur for the purpose of separately expressing my disagreement with what appears to be the policy position of the Agency for Persons with Disabilities (APD), which denies developmentally disabled persons the right to a section 120.57 hearing, despite language in section 393.065(3), placed within the Developmental Disabilities Prevention and Community Services Act, clearly providing them such relief. As explained in the majority’s opinion, recourse to chapter 120 remedies was first conferred in 1988, through the enactment of section 393.065; however, the APD or its predecessors have continued to rely indiscriminately on the section 120.80(7) exemption since its creation in 1974. I think it reasonably clear that the more general provisions of section 120.80(7) cannot trump the later enacted and more specific provisions of sections 393.065(3) and 393.125, authorizing resort to section 120.57.

Having said the above, it is not altogether clear to me whether the legislature intended that chapter 120 processes should be afforded to resolve a dispute such as that in the present case where the level of residential habilitation care is reduced, rather than denied altogether. Section 393.065(3), Florida Statutes (2005), explicitly states that an “applicant determined by the agency to be ineligible for developmental services has the right to appeal this decision pursuant to ss. 120.569 and 120.57.” (Emphasis added.) In the case at bar J.M. availed himself of the procedure supplied in both sections 393.065 and 409.285, Florida Statutes (2005). The latter, part of chapter 409 relating to social and economic assistance, apparently allows an applicant a fair hearing before the Department of Children and Families (DCF). I find it equally unclear why the legislature would choose to afford separate avenues of relief to one denied developmental care.

The DCF is authorized to conduct a statutorily unspecified type of hearing if an application for public assistance “is denied in whole or in part, or if an assistance payment is modified or canceled.” § 409.285(1). It appears that the resumption in developmental service J.M. sought is precisely the kind of public assistance section 409.285 was designed to address. For example, section 409.905(15), Florida Statutes (2005), provides that the Agency for Health Care Administration “may pay for health-related care and services provided on a 24-hour-a-day basis by a facility licensed and certified as a Medicaid Intermediate Care Facility for the Developmentally Disabled.” If it was the legislature’s intent that disputes arising from reductions in developmental services would be restricted solely to fair hearings, its purpose has not been expressed with the clarity one should reasonably expect.

As it now stands, an applicant denied developmental services has the option of seeking either a section 120.57 proceeding, accorded by sections 393.065 and 393.125, or a fair hearing as authorized by section 409.285. Although it may be unclear whether the legislature’s purpose was to create two such alternative avenues of relief, it is obvious that the agency can no longer rely on section 120.80(7) for the theory that a fair hearing is the exclusive means by which an aggrieved applicant for developmental services may seek resolution of a disputed denial.

      . In 1981, Congress created the Home and Community-Based Waiver Program, which provides that people who would otherwise be cared for in nursing homes or other institutions can receive services in their own homes or in home-like settings. See Cramer v. Chiles, 33 F.Supp.2d 1342, 1347-48 (S.D.Fla. 1999) (discussing the history of the waiver program). See also § 42 U.S.C. 1369n(c)(2005). Under the program, states can apply for waivers which excuse compliance with particular statutory and regulatory provisions and permit states to implement waiver programs for developmentally disabled people living at home or in a community-based program (among other waiver programs not related to developmental disabilities). These waivers make Medicaid funds available for certain caregivers who would have been ineligible otherwise. See Cramer, 33 F.Supp.2d at 1348. Florida was first approved for the waiver program in 1982 for day treatment services. In 1992, Florida was approved for a comprehensive waiver program. See id. For a good discussion of Medicaid waiver programs for the developmentally disabled in Florida, see Russell v. Agency for Persons With Disabilities, 929 So.2d 601, 602-603 (Fla. 1st DCA 2006).

      . According to APD's website,
      APD began contracting with Maximus Inc. to conduct Prior Service Authorizations (PSA) for select services (e.g., residential habilitation) and high cost plans. The purpose of the PSA review process is to ensure that individuals on the waiver receive medically necessary services at the appropriate intensity, frequency, and duration....

        http://apd.myflorida, com/about/.

      . J.M.’s support coordinator completed a "Developmental Disabilities Hearing Request” form requesting a hearing on the reduction in J.M.'s residential habilitation, and, on receipt of the form, the Department of Children and Family Services sent J.M. a notice of fair hearing scheduling a hearing before a hearing officer at the Department of Children and Family Services. (The hearing has since been continued.) Unlike Ford, however, J.M. took the additional step of filing a petition for administrative hearing with APD seeking a section 120.57 hearing. APD’s order denying that petition — not an interlocutory order the Department of Children and Family Services entered — is now before us.

      . APD argues that because it is "housed within the Department of Children and Family Services for administrative purposes,” the Department of Children and Family Services has the authority to hold hearings regarding determinations of need for developmental disability services. § 20.197, Fla. Stat, (2005) (“There is created the Agency for Persons with Disabilities, housed within the Department of Children and Family Services for administrative purposes only.”). We reject APD’s argument, which ignores the rest of the statute, specifically: "The director of the agency [APD] shall be the agency head for all purposes....” Id. ("The agency shall be a separate budget entity not subject to control, supervision, or direction by the Department of Children and Family Services in any manner, including, but not limited to, personnel, purchasing, transactions involving real or personal property, and budgetary matters.”).
      APD is not the only agency which is not subject to control or supervision by the department to which it is attached. See § 20.50, Fla. Stat. (2005) (providing that the Agency for Workforce Innovation is "within” the Department of Management Services, but that it is a separate budget entity, its director is the agency head for all purposes, and that the agency is not "subject to control, supervision, or direction” by the department); § 106.24(l)(a), Fla. Stat. (2005) (providing that the Florida Elections Commission is "within” the Department of Legal Affairs, but that it is a separate budget entity, its director is the agency head for all purposes, and that the agency is not “subject to control, supervision, or direction” by the department); § 120.65(1), Fla. Stat. (2005) (providing that the Division of Administrative Hearings is "within” the Department of Management Services, but that it is a separate budget entity, its director is the agency head for all purposes, and that the agency is not "subject to control, supervision, or direction” by the department); § 420.504(1), (3), Fla. Stat. (2005) (placing the Florida Housing Finance Corporation "within” the Department of Community Affairs, but stating that the corporation is not a department, is a separate budget entity, and is not "subject to control, supervision, or direction” by the department); § 443.012(1), (5), Fla. Stat. (2005) (providing that the Unemployment Appeals Commission is "created within” the Agency for Workforce Innovation, but that it not "subject to control, supervision, or direction” by the agency). No party raises any issue under article IV, section 6 of the Florida Constitution.
      APD’s argument implies, for example, that the Secretary of Management Services is authorized to hold administrative hearings, in lieu of the Division of Administrative Hearings, because the Division of Administrative Hearings is housed within the Department of Management Services. See § 20.22(1), Fla. Stat. (2005) (providing that the Secretary of Management Services is the agency head of the Department of Management Services). But APD has not called our attention to any case approving an administrative hearing's being conducted by a department to which a separate agency is attached — rather than by the separate agency's head or an administrative law judge.

      . "When the statute is clear and unambiguous, courts will not look behind the statute’s plain language for legislative intent or resort to rules of statutory construction to ascertain intent.” Daniels v. Fla. Dep’t of Health, 898 So.2d 61, 64 (Fla.2005).

      . Chapter 74-310 created section 120.57, which required formal proceedings before the agency head or a hearing officer of the Division of Administrative Hearings. Among other proceedings originally exempted were "hearings within the division of family services of the department of health and rehabilitative services.” Ch. 74-310, § 1, at 961, Laws of Fla. Substantial revisions were made to the Administrative Procedure Act in 1996, and all exemptions from the requirements of section 120.57 were moved to section 120.80. See Ch. 96-159, § 41, at 204-10, Laws of Fla. (creating section 120.80, Florida Statutes (1996)).

      . Section 393.125, Florida Statutes (2005), adopted in 1989, similarly furnishes a 120.57 hearing to any developmental services applicant whose substantial interests are affected by the agency.

      . State plans are required by 42 U.S.C. § 1396a(a)(3) of the federal Medicaid Act to notify applicants of their right to a fair hearing following any action taken by the state agency which affects the applicant's claim. A fair hearing, moreover, means that it "must meet the due process standards set forth in Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970).” 42 C.F.R. § 431.205(d). The federal procedure is mirrored by Florida Administrative Code Procedure Rule 65-2.042.


text:
    William RANDALL, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-2985.
    District Court of Appeal of Florida, First District.
    Aug. 8, 2006.
    Rehearing Denied Sept. 28, 2006.

      Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Sheron Wells, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant Randall raises five issues in this appeal of his first-degree murder conviction and life sentence. We affirm.

Randall first argues the trial court erred when it denied his request to strike the jury panel. During voir dire, Randall moved the trial court to strike the jury panel. The trial court denied the motion. Jury selection continued and Randall, without renewing his motion, accepted the jury. By failing to renew his motion before the jury was sworn, Randall failed to preserve his motion. See Berry v. State, 792 So.2d 611 (Fla. 4th DCA 2001) (treating defendant’s motion for mistrial as motion to strike jury panel and finding defendant failed to preserve motion by not renewing it before jury was sworn); see also Joiner v. State, 618 So.2d 174, 176 (Fla.1993) (“We agree with the district court that counsel’s action in accepting the jury led to a reasonable assumption that he had abandoned, for whatever reason, his earlier objection. It is reasonable to conclude that events occurring subsequent to his objection caused him to be satisfied with the jury about to be sworn.”).

Randall also argues that the introduction of the victim’s dying declaration violated his Sixth Amendment confrontation right. Although Randall properly objected to the introduction of the statement on hearsay grounds, he never raised the confrontation argument at trial. As a result, Randall also waived this argument on appeal. See Perry v. State, 927 So.2d 228, 228 (Fla. 1st DCA 2006) (“A simple ‘hearsay’ objection fails to preserve the argument that one’s Sixth Amendment confrontation right has been violated.”); see also Meneos v. State, 909 So.2d 349, 351 (Fla. 4th DCA 2005) (“The right of confrontation guaranteed by the Sixth Amendment ‘differs from the kind of protection that is afforded by state evidence rules governing the admission of hearsay.’ ” (quoting Lopez v. State, 888 So.2d 693, 697 (Fla. 1st DCA 2004))).

Randall’s third argument concerns remarks made by the prosecutor during closing arguments. Randall concedes that he failed to properly object to the comments at trial, but argues the comments constitute fundamental error. For improper comments, made during closing argument, to rise to the level of fundamental error, the comments must be “egregious.” See Cherry v. Moore, 829 So.2d 873, 882 (Fla.2002). We find no merit in Randall’s argument on this issue.

Randall’s next argument concerns the trial court allowing the State, when cross-examining Randall, to elicit the fact that he had just returned home from prison. Randall opened the door to this testimony when he testified that the reason he was not out looking for the real killer was because he had “just come home.” See Washington v. State, 758 So.2d 1148, 1155 (Fla. 4th DCA 2000) (explaining that a witness opens the door to prior bad acts when he offers misleading testimony or makes a specific factual claim that the State has a right to correct so that the jury will not be confused). Further, the fact that Randall was a convicted felon was introduced into evidence at least three other times, twice by the defense. Even in the absence of the question on cross-examination, the jury was well aware of the fact that Randall served time in jail. See Salter v. State, 500 So.2d 184, 186 (Fla. 1st DCA 1986) (“An error in admitting testimony is harmless when substantially the same evidence was presented to the jury through the testimony of other witnesses.”).

Randall’s final argument claims that the trial court violated his right to a speedy trial. Defense counsel, despite Randall’s expressions to the contrary, requested and received a continuance during a pre-trial conference. Accordingly, Randall’s right to a speedy trial was waived. See State v. Riechmann, 777 So.2d 342, 365 (Fla.2000) (finding a criminal defendant waives his right to a speedy trial when he takes a continuance). This waiver applies even in situations in which the attorney requests the continuance without consulting the defendant or against the defendant’s wishes. See Taylor v. State, 557 So.2d 138, 142 (Fla. 1st DCA 1990), overruled on other grounds, (“Taylor’s constitutional right to a speedy trial was not violated because the trial extension was reasonable and necessary to protect his right to competent, adequately prepared counsel.”); State v. Kruger, 615 So.2d 757, 759 (Fla. 4th DCA 1993) (“ ‘The principle is well established that the right to a speedy trial is waived when the defendant or his attorney requests a continuance. The acts of an attorney on behalf of a client will be binding on the client even though done without consulting him and even against the client’s wishes.’ ” (quoting State v. Abrams, 350 So.2d 1104, 1105 (Fla. 4th DCA 1977))); see also State v. Kelley, 322 So.2d 581, 583 (Fla. 1st DCA 1975) (finding that an attorney may waive his client’s right to a speedy trial).

Finally, we note that even had Randall succeeded on one or more of his arguments, we would still affirm as the evidence of guilt was overwhelming and, consequently, any error would have had no perceptible effect on the jury’s deliberations, given the circumstances of the actual crime. See State v. DiGuilio, 491 So.2d 1129, 1138 (Fla.1986) (“The harmless error test, as set forth in Chapman [v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967),] and progeny, places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.”).

AFFIRMED.

KAHN, C.J., WEBSTER and HAWKES, JJ., concur.