CHESTER BRYAN

v.

GOVERNOR RON DESANTIS

WINOKUR, J.

Petitioner attempts to invoke the Court’s so-called “all writs” jurisdiction in order to seek relief concerning the denial of an application for commutation of sentence. We deny relief.

Petitioner is serving a sentence for sexual battery by an adult on a victim less than 12 years of age, a capital crime punishable by life imprisonment under section 794.011(2)(a), Florida Statutes (1993). In 2016, Petitioner submitted a clemency application requesting commutation of his sentence. The Office of Executive Clemency informed Petitioner by letter that the Governor had denied his request. The letter indicated that this denial was based on the fact that the Governor had earlier denied “pending clemency applications of all murderers and felony sex offenders.” Attached

to the petition was a March 10, 2021, press release of the Florida Commission on Offender Review, indicating that on that date the Governor exercised his clemency powers to deny the pending clemency applications of all individuals convicted of murder or felony sex offenses. The letter stated that Petitioner may reapply for clemency in five years. Petitioner asks the Court to “instruct the Governor to scrap his ‘blanket policy’” of denying all clemency applications of those convicted of murder or felony sex offenses.

Petitioner asserts that he is entitled to some minimal due process in the review of his clemency application and that the process must not be wholly arbitrary or capricious. See Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 289 (1998) (O’Connor, J., concurring in part and concurring in the judgment). Petitioner argues that the letter from the Office of Executive Clemency is evidence of arbitrary and capricious decision-making.

The Florida Constitution allows this Court to issue “writs of mandamus, certiorari, prohibition, quo warranto, and other writs necessary to the complete exercise of its jurisdiction.” Art. V, § 4(b)(3), Fla. Const. (emphasis added). In applying this provision, the rules of appellate procedure permit this court to issue “all writs necessary to the complete exercise of the courts’ jurisdiction.” Fla. R. App. P. 9.030(b)(3) (emphasis added). This “all writs” provision does not provide Petitioner a proper avenue of relief in this case. We stated the limits of our authority under this provision in Williams v. State:

This “all writs” provision does not, however, constitute a separate source of original or appellate jurisdiction. Rather, it operates as an aid to the court in exercising its “ultimate jurisdiction,” conferred elsewhere in the constitution. These “constitutional writs” are ancillary in that they are used to preserve the power of the court to fully and effectively decide cases that have been, or will be, presented on independent jurisdictional grounds.

102 So. 3d 669, 669 (Fla. 1st DCA 2012); see also Cash v. Smith, 465 So. 2d 1294, 1295–96 (Fla. 1st DCA 1985) (denying relief under the “other writs” or “all writs” power because the petition was “not sought to protect existing jurisdiction of the court”). Because Petitioner does not allege that his petition would preserve or protect our jurisdiction in any way, he has not established any right to relief.

Even if Petitioner had sought some other form of extraordinary writ that would permit us to direct the Governor to consider his clemency application further, we see no basis for relief. Petitioner suggests that the Governor has a duty to consider his application without resort to a policy that denies clemency merely based on the type of crime committed, as this policy violates “due process.” See Woodard, 523 U.S. at 289 (O’Connor, J., concurring in part and concurring in the judgment) (concluding, according to five justices, that “some minimal procedural safeguards apply to clemency proceedings”). We disagree. First, “[t]he clemency process in Florida derives solely from the Florida Constitution and [this Court has] recognized that the people of the State of Florida have vested ‘sole, unrestricted, unlimited discretion exclusively in the executive in exercising this act of grace.’” Carroll v. State, 114 So. 3d 883, 888 (Fla. 2013) (quoting Sullivan v. Askew, 348 So. 2d 312, 315 (Fla. 1977)). As such, courts “will not generally second-guess the executive’s determination that clemency is not warranted.” Pardo v. State, 108 So. 3d 558, 568 (Fla. 2012). Second, “no specific procedures are mandated in the clemency process.” Johnston v. State, 27 So. 3d 11, 25–26 (Fla. 2010). Regarding this second point, we note the observations of the Northern District of California in Allen v. Hickman:

Clemency proceedings satisfy the Due Process Clause as long as the State follows the procedures set out in State law, the State does not arbitrarily deny the prisoner all access to the clemency process, and the clemency decision is not wholly arbitrary or capricious.

407 F. Supp. 2d 1098, 1103–04 (N.D. Cal. 2005) (citing Woodard, 523 U.S. at 289 (O’Connor, J., concurring in part and concurring in the judgment)).

In this case, Petitioner does not allege that the Governor violated any required procedures set forth in Florida law or refused to consider any required criteria, or that he has been denied all access to the clemency process. The Governor’s clemency decision

was likewise not “wholly arbitrary or capricious” as it is not irrational to deny clemency to murderers or felony sexual offenders. Consideration of the offense of conviction is proper when determining whether to exercise the “grace” of clemency.*

As such, even if Petitioner had not improperly sought relief under the “all writs” provision, we would not have seen a basis for relief. Accordingly, the petition is DENIED.

B.L. THOMAS, J., concurs; BILBREY, J., concurs in part and in result.

* See also In re Sapp, 118 F. 3d 460 (6th Cir. 1997). The Court in Sapp rejected a death-sentenced defendant’s claim that the Governor’s announced general policy of not granting clemency in capital cases violated the defendant’s right to due process:

The very nature of clemency is that it is grounded solely in the will of the dispenser of clemency. He need give no reasons for granting it, or for denying it. And there is no precedent in our law that the granter of clemency need do anything with a request for clemency . . . . The governor may agonize over every petition; he may glance at one or all such petitions and toss them away; he may direct his staff as to the means for considering them. Certainly, [Appellant] could not complain if a petition went into the Governor’s office and simply came out stamped “Denied.” He equally cannot complain that the governor has chosen to resolve his mind on these matters by considering cases by categories, nor that he has chosen to make an announcement of such reasoning. No more is the governor bound by such a statement. He may change his mind tomorrow, or he may grant clemency in the face of his own announced policy, without hindrance.

118 F. 3d at 465.