PETIA B. TENEV, APPELLANT,
v.
DEPARTMENT OF LAW ENFORCEMENT, APPELLEE
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Petia Tenev appealed the dismissal of her petition for mandamus challenging the Florida Department of Law Enforcement's denial of her expunction eligibility certificate. The court reversed, holding that mandamus was the proper remedy to challenge the Department's legal conclusions, not internal administrative review.
The circuit court erred in dismissing the mandamus petition based on failure to seek internal review. Mandamus is the proper remedy when challenging the Department's legal conclusions, as distinguished from challenges based on incompleteness or factual error of the criminal history record, which require internal appeal.
[1] A petition for writ of mandamus is the proper vehicle to challenge a government agency's legal conclusion regarding eligibility for expunction.
[2] A court errs in dismissing a petition for writ of mandamus when the petitioner is challenging the agency's legal conclusion, rather than an internal factual dispute.
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Join FLexlaw to unlock all legal intelligence“The Department's denial letter, based upon our holding in Rowell v. State, 700 So.2d 1242, 1243-44 (Fla. 2d DCA 1997), informed Tenev that challenges to her criminal history record based on incompleteness or factual error needed to be appealed internally but that if she was challenging the Department's legal conclusion, she should seek review in the circuit court by motion or by writ.”
Establishes the procedural distinction between challenges requiring internal administrative review versus those properly brought by mandamus in circuit court.
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Join FLexlaw to unlock all legal intelligenceTenev applied for certification of eligibility for expunction with the Florida Department of Law Enforcement. The Department denied her certificate ba…
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Petia Tenev appeals the dismissal of her petition for mandamus. Because the court erred in concluding that mandamus was improper based on Tenev’s failure to seek internal review from the Florida Department of Law Enforcement, we reverse.
Tenev filed an application for certification of eligibility for expunction with the Florida Department of Law Enforcement. Concluding that she was ineligible for ex-punction based on extant adjudications of guilt, the Department denied her the certificate. The Department’s denial letter, based upon our holding in Rowell v. State, 700 So.2d 1242, 1243-44 (Fla. 2d DCA 1997), informed Tenev that challenges to her criminal history record based on incompleteness or factual error needed to be appealed internally but that if she was challenging the Department’s legal conclusion, she should seek review in the circuit court by motion or by writ.
Thereafter, Tenev timely filed a petition for writ of mandamus in the circuit court asserting the Department’s legal error. In her petition, Tenev stated that over a decade ago, she was arrested for felony driving while license suspended or revoked (DWLSR). She attached the circuit court order that dismissed that charge because the State could only establish two prior moving violations (noncriminal infractions) and not criminal convictions. Because that charge was dismissed, Tenev argued in her mandamus petition that the Department legally erred in treating her DWLSR as a felony, precluding issuance of the certificate of eligibility for her expunction. The circuit court concluded it could not entertain the petition, stating that Tenev needed to appeal the Department’s conclusion internally. Tenev appealed that dismissal. The Department concedes that because Tenev seeks to challenge a legal conclusion, the petition for writ of mandamus was indeed the proper vehicle for Tenev to seek review and that dismissal of the petition was error.
The court erred in dismissing the petition for writ of mandamus. On remand, *1276the court shall consider Tenev’s claims on the merits.
Reversed and remanded with directions.
NORTHCUTT and LaROSE, JJ., Concur.
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Citator
Authorities Cited
- Blanco v. United Mortg. Invs., Inc., 700 So. 2d 1242 (Fla. 3d DCA 1997)
- Rowell v. State, 700 So. 2d 1242 (Fla. 2d DCA 1997)