               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED

                                                 IN THE DISTRICT COURT OF APPEAL
                                                 OF FLORIDA
                                                 SECOND DISTRICT

ARTHUR LEE SMITH,                                )
                                                 )
              Petitioner,                        )
                                                 )
v.                                               )       Case No. 2D17-3409
                                                 )
DEPARTMENT OF CORRECTIONS                        )
and COMMISSION ON OFFENDER                       )
REVIEW,                                          )
                                                 )
              Respondents.                       )
                                                 )

Opinion filed June 1, 2018.

Petition for Writ of Certiorari to the Circuit
Court for Desoto County; Kimberly Bonner,
Judge.

Arthur Lee Smith, pro se.

Mark Hiers, Assistant General Counsel,
Tallahassee, for Respondent Commission
on Offender Review.

Beverly Brewster, Assistant General
Counsel, Tallahassee, for Respondent
Department of Corrections.


LaROSE, Chief Judge.


              Arthur Lee Smith petitions this court for a writ of certiorari. He contests

the trial court's order denying his habeas corpus petition addressed to the revocation of

his conditional release supervision. We have jurisdiction. See Fla. R. App. P.
9.030(b)(2)(B); see also Tarver v. Fla. Parole Comm'n, 990 So. 2d 577, 578 (Fla. 3d

DCA 2008) ("[W]e treat the appeal [from the trial court's order denying a habeas petition

pursuing review of the parole commission's decision to revoke conditional release] as a

petition for writ of certiorari, and review the circuit court's denial pursuant to the

applicable standard in cases involving second-tier certiorari."). We deny his petition.

                                        Background

              In 1991, the trial court sentenced Mr. Smith to prison for armed robbery.

He was released on conditional release supervision in September 2009. His

supervision was to end in 2020. Unfortunately for Mr. Smith, he violated his conditional

release by committing several new offenses.

              Upon receipt of a notice of violations from the Florida Commission on

Offender Review (Commission), Mr. Smith, on July 22, 2016, executed a "Notice of

hearing," in which he elected to postpone his conditional release violation hearing until

disposition of his new law violations. Thereafter, on March 1, 2017, he signed a Waiver

of Conditional Release Violation Hearing. On or about March 15, 2017, the

Commission provided Mr. Smith with an amended notice of violations. This amended

notice apparently added two additional violations of supervision. Mr. Smith signed the

amended notice, and placed his initials next to a preprinted statement affirming that he

"hereby freely and voluntarily waive[d] [his] right to [a] violation hearing." The

Commission subsequently revoked his conditional release. Several months later, Mr.

Smith filed a habeas corpus petition challenging his continued detention. The trial court

summarily denied relief.

                              Mr. Smith's Certiorari Petition



                                             -2-
              Mr. Smith seeks immediate release from prison and reinstatement to

conditional release. He makes two arguments. First, he denies that he signed the

notice postponing his hearing. Absent his agreement, he contends that the Commission

had to conduct the violation hearing within forty-five days of his arrest. See

§ 947.141(2), Fla. Stat. (1991) ("Within 45 days after the arrest of a releasee charged

with a violation of the terms and conditions of conditional release, the releasee must be

afforded a hearing conducted by a commissioner or a duly authorized representative

thereof."). Because no hearing took place within that time, Mr. Smith wants to be

released from prison.

              Second, Mr. Smith contends that he never signed a valid waiver of hearing

for the March 15, 2017, amended notice. He admits to signing a waiver for the original

notice. Yet, he asserts: (1) he has no recollection of signing the amended notice; and,

(2) even if he did sign it, the notice was legally ineffective because it did not enumerate

all of the rights he was waiving.

                                          Analysis

              We note that "once an inmate has had a full review on the merits of a

Parole Commission order in the circuit court, he or she is not entitled to a second

plenary appeal of the order in the district court." Sheley v. Fla. Parole Comm'n, 720 So.

2d 216, 218 (Fla. 1998). Rather, we exercise a narrow and limited review. "[T]he

district court's role on second-tier certiorari review [is] limited to a two-pronged review of

the circuit court decision, not a de novo review of the agency decision." Fla. Parole

Comm'n v. Taylor, 132 So. 3d 780, 783 (Fla. 2014) (emphasis omitted) (quoting

Broward County. v. G.B.V. Int'l Ltd., 787So. 2d 838, 845 (Fla. 2001)). We are called

upon "to determine only whether the circuit court: (1) afforded procedural due process;
                                             -3-
and (2) applied the correct law." Id. "The test that has always applied to second-tier

certiorari [is]: it should be granted only when there is a departure from the essential

requirements of law resulting in a miscarriage of justice." Id. (alteration in original)

(quoting Nader v. Fla. Dep't of Highway Safety & Motor Vehicles, 87 So. 3d 712, 726

(Fla. 2012)). "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.' " Miami-Dade County v. Omnipoint Holdings, Inc., 863 So. 2d

195, 199 (Fla. 2003) (quoting Tedder v. Fla. Parole Comm'n, 842 So. 2d 1022, 1024

(Fla. 1st DCA 2003)).

              Clearly established law can be derived not only from case
              law dealing with the same issue of law, but also from an
              interpretation or application of a statute, a procedural rule, or
              a constitution provision. When the established law provides
              no controlling precedent, however, certiorari relief cannot be
              granted because without such controlling precedent, [a
              district court] cannot conclude that [a circuit court] violated a
              clearly establish principle of law. Further, a misapplication or
              an erroneous interpretation of the correct law does not rise
              to the level of a violation of a clearly established principle of
              law.

State, Dep't of Highway Safety & Motor Vehicles v. Edenfield, 58 So. 3d 904, 906 (Fla.

1st DCA 2011) (citations and internal quotation marks omitted).

              We recognize that "[i]n granting writs of common-law certiorari, the district

courts of appeal should not be as concerned with the mere existence of legal error as

much as with the seriousness of the error." Combs v. State, 436 So. 2d 93, 95 (Fla.

1983). "[C]ertiorari cannot be used to grant a second appeal to correct the existence of

mere legal error." Custer Med. Ctr. v. United Auto Ins. Co., 62 So. 3d 1086, 1093 (Fla.

2010). Rather, second-tier certiorari is meant to rectify "an inherent illegality or

irregularity, an abuse of judicial power, an act of judicial tyranny perpetrated with
                                             -4-
disregard of procedural requirements, resulting in a gross miscarriage of justice."

Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 527 (Fla. 1995) (quoting Jones v.

State, 477 So. 2d 566, 569 (Fla. 1985) (Boyd, C.J., concurring specially)).

              Mr. Smith's first argument is meritless. Even if he did not sign a document

postponing the hearing, no law commands that a failure to conduct a revocation hearing

within forty-five days must result in his release. "Nothing in [section 947.141] provides

that the failure to timely conduct a conditional release supervision revocation hearing is

jurisdictional." Gillard v. State, 827 So. 2d 316, 317 (Fla. 1st DCA 2002). Moreover, as

Gillard explained:

              [R]evocation hearings are governed by due process
              considerations and are subject to the requirement that they
              be conducted within a reasonable time. If the applicable
              statute sets forth a definite time period for the hearing, and
              the time period is violated, the delay is presumed
              unreasonable. To be entitled to relief, the releasee must
              show that he was prejudiced by the alleged delay in addition
              to showing the statutory violation.

Id. (emphasis added) (citations omitted). Mr. Smith makes no such showing. See

Danluck v. Lotspeich Co., 334 So. 2d 32, 34 (Fla. 3d DCA 1976) ("On certiorari, as on

appeal, there is a presumption as to the correctness of the trial court's rulings, and the

burden rests on the petitioner for certiorari to make any error complained about to

appear fully.").

              Mr. Smith's failure to show prejudice dovetails with another reason that his

first argument cannot succeed. As reflected in the trial court's thorough order denying

habeas relief, Mr. Smith validly postponed his hearing, pending "disposition of . . .

charges against [him]." He chose to "waive the forty-five (45) day time constraint to

have a violation hearing." Mr. Smith cannot now be heard to complain that he was

                                            -5-
deprived of a timely hearing. See Fla. Admin. Code R. 23-23.011(4)(d) (2016) ("The

granting of a continuance or postponement on behalf of the conditional releasee

constitutes a waiver by the conditional releasee of all time constraints, any requirement

for a local hearing, and shall postpone disposition of the violations until notification is

received by the Commission that the pending criminal charges have been resolved or

the Releasee elects to proceed with or waive the hearing."). Nor can we say that the

trial court's conclusions were based on the incorrect law.

              The crux of Mr. Smith's second argument is that he signed no valid waiver

for the March 15, 2017, amended notice. At first blush, the record seemingly supports

Mr. Smith's position. Although he signed a Waiver of Conditional Release Violation

Hearing for the original notice, he signed no such form for the amended notice. Under

careful scrutiny, however, this incongruity is unavailing.

              On the March 15, 2017, amended notice, Mr. Smith initialed and signed a

provision stating that he was waiving his right to a violation hearing. With the exception

of the addition of offenses, the amended notice was identical to the original July 22,

2016, notice. Despite the absence of a formal waiver like the one he signed on March

1, 2017, our record amply demonstrates that the trial court correctly concluded that Mr.

Smith intended to waive a hearing for the amended notice.

              Mr. Smith's petition falters upon a comparison of the original notice and

the amended notice. The original notice listed five violations: two burglary offenses

(paragraphs 1 and 3), two grand theft offenses (paragraphs 2 and 4), and a curfew

violation (paragraph 5). The State subsequently nolle prossed the theft charges. Mr.

Smith pleaded nolo contendere to the reduced charges of trespass, with the judgments

and sentences filed on March 1, 2017. Although the amended notice identified the five
                                             -6-
violations alleged in the original notice, the amended notice also added the two trespass

convictions, as though they were new violations of conditional release. In fact, they

merely represented the adjudication of the violations alleged in paragraphs 1 and 3.

              We cannot say that the trial court's denial of habeas relief constituted a

departure from the essential requirements of law. The factual scenario presented to us

does not implicate any due process concerns. See, e.g., McRae v. State, 88 So. 3d

384, 385 (Fla. 2d DCA 2012) (holding that revocation of probation based on an

uncharged violation deprives the defendant of due process and constitutes fundamental

error); Singletary v. State, 537 So. 2d 674, 674-75 (Fla. 2d DCA 1989) (recognizing that

the minimum procedural safeguards imposed by due process include the probationer's

right to notice of the claimed violations of his probation). Mr. Smith received notice and

an opportunity to be heard from the Commission.

              Any one of the alleged violations would have been sufficient to revoke his

conditional release. See Logan v. State, 964 So. 2d 209, 210 (Fla. 5th DCA 2007)

(observing that when a conditional releasee "violate[s] a condition of release prior to the

expiration of their full, pronounced prison term, gain time and release are revoked and

they may be re-incarcerated for the balance of their sentence" (emphasis added)).

              Furthermore, Mr. Smith cannot now complain that he was broadsided by

the absence of a more formal waiver of hearing pertaining to the amended notice. As

part of the March 1, 2017, waiver, Mr. Smith agreed to waive a number of rights.

Evidently, Mr. Smith was aware of the rights and processes he abandoned when he

signed the amended notice, a short two weeks later. Although the waiver for the

amended notice is not as detailed as the March 1, 2017, waiver, Mr. Smith cannot

demonstrate that he was caught unawares of the import and effect of affixing his initials
                                           -7-
and signature to the amended notice, much less that the absence of a formal waiver

constitutes a miscarriage of justice.

              It is true that a conditional releasee may withdraw his previously executed

violation hearing waiver within fourteen days after execution of the waiver. See Fla.

Admin. Code R. 23-23.011(4)(c)(1). Mr. Smith does not contend that he would have

withdrawn a formal waiver to the amended notice had he been offered and signed one.

Instead, by signing the waiver pertaining to the original notice, Mr. Smith demonstrated

his intent to waive a revocation hearing. Furthermore, as the new law violations served

as the basis for the amended notice, and they had been adjudicated at the time the

amended notice was issued, we cannot conceive of Mr. Smith electing to revoke such a

waiver.

              Because the trial court applied the correct law and afforded procedural

due process, we must deny the petition on the merits.

              Petition denied.



CRENSHAW and LUCAS, JJ., Concur.




                                           -8-
