ANTHONY CASH, JOE L. HOLLAND, DOUGLAS LAVERN ADAMS AND HECTOR LEON, JR., PETITIONERS,
v.
SHARYN L. SMITH, DIRECTOR, DIVISION OF ADMINISTRATIVE HEARING, DEPARTMENT OF ADMINISTRATION, STATE OF FLORIDA, RESPONDENTS

Fla. 1st DCA | 1985-03-12
No. BC-418
SHIVERS, WENTWORTH and NIM-MONS, JJ., concur.
465 So. 2d 1294 Florida District Court of Appeal, First District (1985) Positive Treatment
Cited by 14 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.


Holding

The court held that it lacked jurisdiction to grant the extraordinary relief sought by the petitioners and that none of the extraordinary writs provided a remedy.


Headnotes

[1] Extraordinary writs are unavailable when a party seeks review of the manner in which an official performed a duty, rather than coercion to perform a ministerial duty.

[2] Prohibition is inapplicable when a party seeks to prevent an entity from exercising authority over a matter within its jurisdiction.

Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

Inmates filed a petition challenging a proposed rule, which was dismissed by DOAH for non-compliance. Petitioners claimed they did not receive timely …

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
PER CURIAM.

PER CURIAM.

Petitioners are inmates in the Florida State Prison system who filed a petition to determine the invalidity of a proposed Department of Corrections rule with the Division of Administrative Hearings. Sharyn L. Smith, Director of the DOAH, dismissed the petition by an administrative order stating that the petition failed to comply with § 120.54(4), Florida Statutes.1 That order was rendered on August 9,1984. On October 8, 1984, petitioners filed a document in this court entitled “Emergency Petition for Writ of Prohibition; A Writ of Mandamus and a Constitutional Stay Writ” in which petitioners seek an order compelling DOAH to entertain their rule challenge.

In addition to arguing on the merits, petitioners alleged that they had not been served with the order of dismissal and had no knowledge of its entry until September 10, 1984, too late to file a timely notice of appeal.

We entered a show cause order directing DOAH to show why the relief sought by petitioners in this court should not be granted. DOAH responded by suggesting that extraordinary relief was inappropriate and the petition should be treated as a plenary appeal from the order of dismissal. Normally, respondents’ suggestion would be well taken. The dilemma, however, is that the petition is not timely as a notice of appeal so that if we treated it as such, it would have to be dismissed for lack of jurisdiction. Rule 9.110(b), Fla.R.App.P. At the same time, relief by extraordinary writ appears to be unavailable to petitioners. Assuming the truth of petitioners’ assertion that they did not receive the dismissal order until the time for appeal had expired,2 the underlying factual scenario is analogous to cases where review by habeas corpus is permitted when a prisoner’s untimely filing of a notice of appeal was no fault of his own. See Hollingshead v. Wainwright, 194 So. 2d 577 (Fla.1967); Baggett v. Wainwright, 229 So. 2d 239 (Fla.1969). In such cases, belated appeal by habeas corpus is permitted because the order sought to be reviewed ultimately determines the legality of the petitioner’s incarceration. However, unlike those cases, the present appeal has no bearing on petitioners’ incarceration. Since petitioners here do not seek review of a conviction or of a denial of post conviction relief, the rationale for utilizing the writ of habeas corpus is not present.

Nor do any of the other extraordinary writs provide a remedy in this situation. Mandamus does not lie because petitioners are not seeking to coerce respondent to perform an official, ministerial duty which she is required by law to perform. See Dickey v. Circuit Court, Gadsden County, 200 So. 2d 521 (Fla.1967). Instead, petitioners are seeking review of the manner in which respondent has performed her duty. Similarly, prohibition is inapplicable because petitioners are not requesting this court to prevent respondent from exercising authority in a matter over which she has no jurisdiction. See English v. McCrary, 348 So. 2d 293 (Fla.1977). Ironically, what petitioners ultimately desire is that we exercise authority over respondent in excess of our jurisdiction.3 Finally,4 although the constitution provides this court with the power to issue “other writs necessary to the complete exercise of its jurisdiction,” 5 we find no remedy for petitioners in that clause. Our authority to issue “other writs” is similar to the Supreme Court's “all writs” power found in Art. V, § 3(b)(7). In construing that clause, the Supreme Court has held that it cannot be used as an independent basis of jurisdiction. St. Paul Title Insurance Corp. v. Davis, 392 So. 2d 1304 (Fla.1981); Besoner v. Crawford, 357 So. 2d 414 (Fla.1978). As in Davis and Besoner, the present application is not sought to protect existing jurisdiction of the court; it seeks an independent basis for invoking our jurisdiction.

Because we find that none of the extraordinary writs provides a remedy for petitioners and because we are without jurisdiction to review the order by direct appeal or common law certiorari,6 the petition is dismissed. However, we certify the following question as being a matter of great public importance:

MAY THE APPELLATE JURISDICTIONAL TIME RESTRICTIONS BE EXTENDED BY STATE ACTION DEPRIVING A PARTY OF NOTICE OF THE ENTRY OF AN APPEALABLE ORDER?

Petition dismissed.

SHIVERS, WENTWORTH and NIM-MONS, JJ., concur. . In its entirety, the order reads:

ORDER

This proceeding was initiated on the Petition of Anthony E. Cash, Douglas L. Adams, Joe L. Holland, Vernon Vaughn, Hector Leon, Jr., and James Fivecoat, pursuant to Section 120.54(4), Florida Statutes, and challenges the validity of Respondent’s proposed Rule 33-3.-02(6)(b), Florida Administrative Code. After reviewing the Petition, the undersigned finds that it does not comply with the requirements of Section 120.54(4), Florida Statutes, and it is therefore....

. If we were to find petitioners otherwise entitled to relief, appointment of a commissioner to conduct a fact finding proceeding might be required. Due to our disposition of the cause, however, we may assume the truth of petitioners’ representations.

. The 30-day time period for commencement of appeals is jurisdictional. Rule 9.110(b), Fla.R.App.P. . For obvious reasons, the extraordinary writ of quo warranto is inapplicable here.

. Art. V, § 4(b)(3), Fla. Const. See also Rule 9.030(b)(3), Fla.R.App.P. . Proceedings for review by common law certiorari must also be commenced within 30 days of rendition of the order to be reviewed. Rule 9.100(c), Fla.R.App.P.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • …PER CURIAM. Appellant moves for partial relinquishment of jurisdiction to the Department of Health and Rehabilitative Services (Depart [*596] ment) and/or for a stay of proceedings pending review by the Florida Supreme Court in Cash v. Smith, 465 So. 2d 1294 (Fla. 1st DCA 1985). Appellant alleges it received no notice of the entry of the lower tribunal’s final order until after the 30-day period for taking an appeal had passed.1 The order in question was rendered January 25, 1985. The notice of appeal w…
  • Black v. State, 490 So. 2d 1287 (Fla. 1st DCA 1986)
    …he petition. Our initial reason for denying the petition is that it does not allege that the relief requested will entitle the petitioner to release or a new trial. Only in such circumstances will a writ of habeas corpus be granted. Cash v. Smith, 465 So. 2d 1294 (Fla. 1st DCA 1985). Even if such an allegation were made, however, we find that the present petition must be denied. The right to a belated appeal arises from the accused’s sixth amendment right to counsel, made applicable to the states through the…
  • Sulliman v. Dep't of Prof'l Reg., 474 So. 2d 3 (Fla. 1st DCA 1985)
    …order, so that the time period for appeal has expired when the affected party receives such notice, precludes review of the action below. We are constrained to hold that, the matter being jurisdictional, the appeal must be dismissed. Cash v. Smith, 465 So. 2d 1294 (Fla. 1st DCA 1985); Upjohn Healthcare Services, Inc. v. Department of Health and Rehabilitative Services, 471 So. 2d 595 (Fla. 1st DCA 1985). In accordance with the Cash and Upjohn decisions, we certify the following question to be one of great pub…

Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.

Join FLexlaw to unlock all legal intelligence

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw