N. GEORGE FREDERICK, PETITIONER,
v.
FLORIDA REAL ESTATE COMMISSION AND RONALD L. MYERS, RESPONDENTS
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Petitioner Frederick challenges a Florida Real Estate Commission order suspending his real estate license. The Court vacated the suspension because the Commission found him guilty on a count under which he was never charged, violating fundamental due process.
No. The Court held that Frederick's adjudication of guilt under Count II cannot be sustained because he was never charged under that count. The Commission's final order suspending his license is accordingly vacated.
[1] A real estate commission cannot adjudicate guilt against a party for a charge that was never filed against them.
[2] A party cannot be found guilty of a charge when the proceedings were tried under the understanding that the charge applied exclusively to another party.
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Join FLexlaw to unlock all legal intelligence“We find that this adjudication of guilt under Count II cannot be sustained because petitioner was never charged under this count.”
States the core holding that Frederick cannot be found guilty on charges not brought against him, establishing the fundamental due process violation.
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Join FLexlaw to unlock all legal intelligenceThe FREC filed a joint information against Frederick (salesman) and his broker in two counts: Count I charged Frederick with breach of trust and misre…
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OWEN, Judge.
Petitioner seeks a writ of certiorari to review a final order of the Florida Real Estate Commission temporarily suspending his real estate salesman’s registration.
The Florida Real Estate Commission initiated the instant proceedings by filing a joint information against petitioner and his broker (who is not a party to this appeal). The information was in two counts. Count I alleged that petitioner was guilty of a breach of trust and misrepresentation in violation of Fla.Stat. § 475.25(1) (a) (1971); Count II alleged that petitioner’s broker was guilty of failing to deposit monies entrusted to him in a proper trust or escrow account in violation of Fla.Stat. § 475.25(1) (i) (1971). The record reflects that there was no amended information filed and that the action was tried on the understanding by all parties that the charges in Count I related exclusively to petitioner and that those in Count II related exclusively to his broker. Incomprehensibly, the hearing examiner’s Recommended Order and the real estate commission’s Final Order both treat the charges contained in each count as relating to both defendants, with the net result of the proceedings below being an exoneration of the defendant-broker on both counts and an exoneration of defendant-salesman, petitioner, on Count I, but a finding of guilt as to Count II, which is accordingly the subject of this appeal. We find that this adjudication of guilt under Count II cannot be sustained because petitioner was never charged under this count.
The petition for certiorari is granted and the Florida Real Estate Commission is directed to vacate its final order adjudging the petitioner guilty of the charges in Count II and suspending his real estate salesman’s registration.
CERTIORARI GRANTED.
CROSS and DOWNEY, JJ., concur.