          Supreme Court of Florida
                                   _____________

                                   No. SC11-2460
                                   _____________


                      FLORIDA PAROLE COMMISSION,
                                Petitioner,

                                          vs.

                                ROBERT TAYLOR,
                                   Respondent.

                               [January 23, 2014]
                             CORRECTED OPINION


CANADY, J.

      The Florida Parole Commission seeks review of Taylor v. Florida Parole

Commission, 75 So. 3d 307 (Fla. 1st DCA 2011), in which the First District Court

of Appeal granted a petition for second-tier certiorari and quashed an order by the

Third Judicial Circuit Court. Because the First District granted certiorari relief

based on a de novo review of the administrative decision of the Florida Parole

Commission (FPC) rather than conducting a limited certiorari review of the circuit

court’s order, the First District’s decision expressly and directly conflicts with

Sheley v. Florida Parole Commission, 720 So. 2d 216, 218 (Fla. 1998), in which
this Court held 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.” We have jurisdiction. See art. V, §

3(b)(3), Fla. Const.

      In addition to concluding that the First District’s decision exceeded the

scope of second-tier certiorari review, we hold that the First District erred in

granting certiorari relief because the circuit court’s decision did not result in a

miscarriage of justice. We therefore quash the First District’s decision.

                                 I. BACKGROUND

      In 1989, Robert Taylor was sentenced as a habitual offender for burglary

with assault and false imprisonment. He was granted conditional release in 2007.

In 2008, Taylor violated his conditional release by failing to maintain full-time

employment. At that time, the FPC determined that Taylor’s conditional release

should not be revoked.

      In 2010, Taylor admitted that he again violated a condition of his release by

using marijuana. After a hearing, during which a conditional release officer and

Taylor testified, the parole examiner concluded that Taylor’s violation was willful

and substantial but recommended that Taylor be restored to regular supervision.

The FPC rejected this recommendation and revoked Taylor’s conditional release.

In its order, the FPC concluded that Taylor willfully violated a substantial



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condition of his conditional release by “using or possessing narcotics, drugs or

marijuana, unless prescribed by a physician, in that on or about April 5, 2010, he

did use and/or possess marijuana, not prescribed by a physician, as evidenced by

his own admission.” Appellant’s Brief on the Merits at Exhibit 1:94, Fla. Parole

Comm’n v. Taylor, No. SC11-2460 (Apr. 2, 2013) (Revocation of Conditional

Release Order). The FPC then explained that the FPC “deems it for the best

interests of society and the Conditional Releasee, that Robert L. Taylor be returned

to the custody of the Department of Corrections, there to remain not to exceed

his/her sentence or until further order of the Commission.” Id.

      Taylor filed in the circuit court a pro se petition for a writ of habeas corpus.

He argued in part that the FPC abused its discretion by revoking Taylor’s

conditional release without “stating with particularity”—as required by section

120.57(1)(l), Florida Statutes (2010)—its reason for departing from the parole

examiner’s recommendation. After ordering a response from the FPC, the circuit

court denied Taylor’s habeas petition. Without expressly addressing Taylor’s

argument that the FPC failed to state its reasoning with sufficient particularity, the

circuit court concluded that Taylor was not entitled to relief from the FPC’s

decision because the parole examiner’s finding of a willful violation was supported

by competent, substantial evidence and the FPC acted within its discretion in




                                         -3-
revoking Taylor’s conditional release. See Taylor v. Fla. Parole Comm’n, No.

2010-588-CA at 2 (Fla. 3d Jud. Cir. Mar. 17, 2011).

      Taylor then filed in the First District a pro se petition for a writ of certiorari.

Taylor argued that the FPC failed to follow Florida’s Administrative Procedures

Act, ch. 120, Fla. Stat. (2010), when it rejected the parole examiner’s

recommendation. After ordering a response from the FPC, the First District

granted Taylor’s petition. The First District concluded that “under the facts of this

case as determined by the parole examiner, the Commission abused its discretion

in revoking Petitioner’s supervision, resulting in a miscarriage of justice.” Taylor,

75 So. 3d at 308.

      The FPC petitioned this Court for review of the First District’s decision on

the basis that the decision expressly and directly conflicts with Sheley. This Court

granted review and appointed counsel for Taylor.

                                   II. ANALYSIS

      In the analysis that follows, we first address the conflict between the First

District’s decision and Sheley. We then explain why the First District erred in

granting second-tier certiorari relief in Taylor’s case.

      “[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.” Broward Cnty. v. G.B.V. Int’l, Ltd., 787 So. 2d 838, 845 (Fla.



                                          -4-
2001) (citing generally City of Deerfield Beach v. Vaillant, 419 So. 2d 624 (Fla.

1982)). The district court is to determine only whether the circuit court: (1)

afforded procedural due process; and (2) applied the correct law. Id. at 843.

      Furthermore, certiorari review “cannot be used simply because the district

court disagrees with the outcome of the circuit court’s decision. . . . [D]istrict

courts should act only where the error is one that is a departure from the essential

requirements of law.” Nader v. Fla. Dep’t of High. Saf. & Motor Veh., 87 So. 3d

712, 726 (Fla. 2012). “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. (emphasis added).

      In Sheley, this Court applied these principles of second-tier certiorari in the

context of reviewing a decision by the FPC. In that case, an inmate filed a petition

for a writ of mandamus challenging the FPC’s decision regarding his presumptive

parole release date. After the circuit court denied his mandamus petition, the

inmate attempted to appeal the circuit court’s order. The First District treated the

appeal as a petition for a writ of certiorari and denied relief, reasoning that “[t]here

has been no showing that the circuit court failed to afford the inmate due process of

law or that the court departed from the essential requirements of the law.” Sheley

v. Fla. Parole Comm’n, 703 So. 2d 1202, 1206 (Fla. 1st DCA 1997). The First

District further concluded that the circuit court “properly fulfilled its appellate



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function in reviewing the sufficiency of the evidence supporting the Commission’s

administrative decision.” Id. Sheley then sought review in this Court based on

conflict with Johnson v. Florida Parole & Probation Commission, 543 So. 2d 875

(Fla. 4th DCA 1989), in which the Fourth District Court of Appeal held that an

inmate could appeal a circuit court’s denial of a mandamus petition challenging a

decision by the FPC.

      After explaining that Sheley “cite[d] no statute or rule that would provide

authority for a second plenary appeal of a Parole Commission order in the district

court, nor d[id] he advance any sound policy reason for formulating such a

practice,” Sheley, 720 So. 2d at 217, this Court approved the First District’s

decision and disapproved Johnson. Id. at 218. This Court held 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.” Id. This Court also agreed with the First District’s conclusion that

Sheley had “been afforded extensive judicial review of his claim and ha[d] been

deprived of no rights.” Id.

      In the instant case, the First District’s opinion indicates that the district court

did not limit its review to the legal issues of whether the circuit court provided due

process and applied the correct law when ruling on Taylor’s habeas petition.

While the First District purported not to “direct the lower tribunal to enter any



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particular order,” the First District reached its decision by reviewing the merits of

the FPC’s decision to revoke Taylor’s conditional release. Taylor, 75 So. 3d at

308. The First District granted Taylor’s petition for a writ of certiorari based on

the conclusion that “under the facts of this case as determined by the parole

examiner, the Commission abused its discretion in revoking Petitioner’s

supervision, resulting in a miscarriage of justice.” Id.

      We resolve the current conflict by adhering to our decision in Sheley

regarding the scope of a district court’s second-tier certiorari review of a circuit

court’s order. We again conclude that second-tier certiorari relief should be

granted only where the circuit court departed from the essential requirements of

law and that departure resulted in a miscarriage of justice. A petitioner who has

had appellate review of a decision by the FPC in the circuit court is not entitled to a

second plenary appeal in the district court. Accordingly, the First District erred by

reviewing the decision of the FPC to revoke Taylor’s conditional release, rather

than confining its review to the propriety of the circuit court’s order.

      In addition to exceeding the scope of second-tier certiorari review, the First

District also erred by concluding that there had been a miscarriage of justice in

Taylor’s case. Second-tier certiorari is available only “to correct grievous errors

that, for a variety of reasons, are not otherwise effectively subject to review.”

Custer Med. Ctr. v. United Auto. Ins. Co., 62 So. 3d 1086, 1092 (Fla. 2010)



                                         -7-
(quoting Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 530 n.14 (Fla. 1995)).

In its order, the circuit court did not address Taylor’s argument that the FPC failed

to state with particularity its reason for rejecting the parole examiner’s

recommended sanction. But even if the FPC’s statement of its reasoning was

insufficient, such a defect in the FPC’s order is not a grievous error that constitutes

a miscarriage of justice.

      The Florida Statutes provide that once a willful violation is proven, the FPC

has discretion to reject a parole examiner’s recommended sanction. Section

947.141(4), Florida Statutes (2010), conditions the FPC’s authority to reject a

parole examiner’s finding of fact or conclusion of law but grants the FPC

discretion to “revoke conditional release, control release, conditional medical

release, or addiction-recovery supervision and thereby return the releasee to prison

to serve the sentence imposed, reinstate the original order granting the release, or

enter such other order as it considers proper.” Similarly, section 120.57(1)(l)

provides that so long as the administrative agency reviews the complete record and

“stat[es] with particularity its reasons,” the agency may “reduce or increase” the

penalty recommended by the hearing officer.

      Florida case law likewise recognizes that the FPC has broad discretion to

revoke conditional release. The First District has explained that a “willful

violation of a substantial condition of parole or probation will justify revocation of



                                         -8-
parole or probation,” Mathis v. Fla. Parole Comm’n, 944 So. 2d 1182, 1183 (Fla.

1st DCA 2006), and distinguished the deference due to a parole examiner’s finding

of fact from the FPC’s discretion regarding a parole examiner’s “non-binding”

recommendation to restore conditional release. Lopez v. Fla. Parole Comm’n, 943

So. 2d 199, 199 (Fla. 1st DCA 2006); see also Smith v. Fla. Parole Comm’n, 971

So. 2d 1028, 1028 (Fla. 1st DCA 2008) (“Petitioner asserts that the Parole

Commission was bound by the hearing examiner’s recommendation that he be

reinstated to parole. This argument has been rejected by this court . . . .”); Miller v.

Sec’y, Dep’t of Corr., 8:07-CV-400-T-23EAJ, 2010 WL 2366935 at *3 (M.D. Fla.

June 11, 2010) (“A hearing officer’s finding of fact binds the parole commission,

but a hearing officer’s recommendation regarding revocation is not a binding fact.”

(internal citation omitted)).

      Because the FPC’s determination whether to revoke a conditional release is

inherently discretionary, once a substantial, willful violation is established, the

circuit court may not require the FPC to impose a particular sanction. “Th[e] court

cannot substitute its judgment for that of an administrative agency, charged with

implementing and enforcing its own statute, when that agency has imposed a

penalty within the permissible range of penalties.” Fernandez v. Dep’t of Health,

120 So. 3d 117, 119 (Fla. 4th DCA 2013) (quoting Mendez v. Fla. Dep’t of Health,

943 So. 2d 909, 911 (Fla. 1st DCA 2006)). Rather, under section 120.57(1)(l), if



                                         -9-
an agency fails to set out the reasoning for its decision with sufficient particularity,

the remedy is to quash and remand the case so that the agency has an opportunity

to add the required statement of reasoning to its order. See, e.g., Hutson v. Casey,

484 So. 2d 1284, 1285 (Fla. 1st DCA 1986) (“We therefore remand this case to the

School Board for the purpose of entering an amended order which complies with

the requirements of [section 120.57(1)], assuming that the Board, on remand,

chooses not to accept the hearing officer’s recommended penalty.”); Lusskin v.

Dep’t of Health, Bd. of Med., 820 So. 2d 424, 426 (Fla. 4th DCA 2002) (“The

Board is imbued with the authority to accept or reject the hearing officer’s penalty

recommendation. . . . We reverse the order of the Board and remand the case for

compliance with section 120.57(1)(l), Florida Statutes (2001).”).

      In Taylor’s case, the FPC concluded that revocation was “for the best

interest of society and the Conditional Releasee.” Revocation of Conditional

Release Order at 1. This statement was arguably sufficient to meet the requirement

of section 120.57(1)(l) that the FPC “stat[e] with particularity its reasons” for

rejecting the penalty recommended by the parole examiner. But even if this

statement was insufficiently particular, Taylor has not shown that he has suffered a

grievous injury. Taylor admitted that he violated his conditional release by using

marijuana. As a result of that evidence of a willful and substantial violation, the

FPC undeniably had an adequate basis to exercise its discretion to revoke Taylor’s



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conditional release. If the FPC’s order did violate section 120.57(1)(l), the error

could have been remedied by providing an opportunity for the FPC to supplement

its order. Accordingly, the circuit court’s denial of his habeas petition did not

result in a miscarriage of justice.

                                 III. CONCLUSION

      Based on the foregoing, we adhere to Sheley, quash Taylor, and remand this

case for reinstatement of the circuit court’s order that denied Taylor’s petition for a

writ of habeas corpus.

      It is so ordered.

POLSTON, C.J., and PARIENTE, QUINCE, LABARGA, and PERRY, JJ.,
concur.
LEWIS, J., concurs in result.

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

Application for Review of the Decision of the District Court of Appeal – Direct
Conflict of Decisions

      First District – Case No. 1D11-2081

      (Madison County)

Sarah J. Rumph, General Counsel, Florida Parole Commission, Tallahassee,
Florida,

      for Petitioner

Christopher M. Jones and Peter P. Sleasman, Florida Institutional Legal Services,
Newberry, Florida,



                                         - 11 -
for Respondent




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