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

                                                 IN THE DISTRICT COURT OF APPEAL
                                                 OF FLORIDA
                                                 SECOND DISTRICT

GLENN L. SPRADLEY,                               )
                                                 )
               Petitioner,                       )
                                                 )
v.                                               )               Case No. 2D14-4056
                                                 )
PAROLE COMMISSION,                               )
                                                 )
               Respondent.                       )
                                                 )

Opinion filed September 9, 2015.

Petition for Writ of Certiorari to the Circuit
Court for the Sixth Judicial Circuit for
Pinellas County; sitting in its appellate
capacity.

Glenn Spradley, pro se.

Sarah J. Rumph, General Counsel,
Commission on Offender Review,
Tallahassee, for Respondent.



LaROSE, Judge.

               Glenn Spradley petitions for certiorari review of the trial court's order

dismissing his mandamus petition seeking to compel the Parole Commission to

reconsider its denial of parole. He wants us to quash the order and instruct the trial

court to transfer the petition to Hillsborough County for adjudication on the merits. We

grant the petition, approve the trial court's decision that proper venue is in Leon County,
quash the dismissal of the petition, and remand for transfer to the circuit court in the

Second Judicial Circuit in Leon County.

              In 1980, a jury convicted Mr. Spradley of attempted first-degree murder;

the trial court sentenced him to life in prison. Mr. Spradley was incarcerated in Union

County, Florida, with a presumptive parole release date of November 7, 1998. In

August 1998, a parole examiner interviewed Mr. Spradley and recommended his

release on the presumptive date. See Fla. Admin. Code R. 23-21.015 (1998).1 The

Commission heard Mr. Spradley's case at an October 1998 meeting. The Commission

considered whether there was a reasonable probability that Mr. Spradley, on parole,

would "live and conduct himself . . . as a respectable and law-abiding person." See §

947.18, Fla. Stat. (1998). The Commission thought not. Consequently, it denied Mr.

Spradley's release, suspended the presumptive release date, and referred the case for




              1
               23-21.015. Effective Parole Release Date Interview Procedure.
              (1) . . . Within ninety (90) days before an inmate's
              presumptive parole release date, the Director of Parole
              Grant shall direct a Parole Examiner to interview the inmate
              for purposes of making a recommendation to the
              Commission on whether or not to authorize an effective
              parole release date and to establish a parole release plan.

                                            -2-
extraordinary review, with future interviews to be scheduled. See Fla. Admin. Code R.

23-21.01552; § 947.174, Fla. Stat. (1998)3; Fla. Admin. Code R. 23-21.013(1).4


             2
              23-21.0155. Extraordinary Interview and Review Procedures.
             Where an inmate's case is referred to the Commission for
             extraordinary review, the following procedures shall be
             utilized:
             (1) The Commission shall independently review the
             complete official record in the inmate's case to determine
             whether he is eligible for parole release.
                      ....
             (3) If less than a majority of the commission finds the inmate
             to be eligible for parole release, the Commission shall enter
             a written order refusing to authorize the effective parole
             release date and scheduling an extraordinary interview
             within two (2) years from the date of the effective parole
             release date interview. The Commission's order shall
             specifically state the reasons for finding the inmate to be
             ineligible for parole release and shall identify the information
             relied upon in reaching this conclusion. Additionally, the
             order shall suspend the established presumptive parole
             release date until such time that the inmate is found to be
             eligible for parole release. The determination, on
             extraordinary review, that an inmate is not eligible for parole
             release shall have the effect of overriding his guideline-
             determined presumptive parole release date[;] however, the
             inmate shall continue to receive extraordinary interviews on
             a biennial basis.
             3
              947.174. Subsequent interviews
             (1)(a) For any inmate, except an inmate convicted of an
             offense enumerated in paragraph (b), whose presumptive
             parole release date falls more than 2 years after the date of
             the initial interview, a hearing examiner shall schedule an
             interview for review of the presumptive parole release date.
             Such interview shall take place within 2 years after the initial
             interview and every 2 years thereafter.
             (b) For any inmate convicted of murder, attempted murder,
             sexual battery, or attempted sexual battery, or any inmate
             who has been sentenced to a 25-year minimum mandatory
             sentence previously provided in s. 775.082, and whose
             presumptive parole release date is more than 5 years after
             the date of the initial interview, a hearing examiner shall
             schedule an interview for review of the presumptive parole
             release date. The interview shall take place once within 5
                                           -3-
             Mr. Spradley was scheduled for another parole release date interview in

February 2013. Before the scheduled date, the Commission informed the chief judge of

the Sixth Judicial Circuit (Pinellas County), where Mr. Spradley was sentenced, of this

status. See § 947.1745(6), Fla. Stat. (2012); Fla. Admin. Code R. 23-21.015(1) (2012).5

Responding to the Commission, the chief judge objected to Mr. Spradley's release. See

§ 947.1745(6); Fla. Admin. Code R. 23-21.015(1).6 Thereafter, a parole examiner

interviewed Mr. Spradley and recommended continued suspension of his release date.

See Fla. Admin. Code R. 23-21.015.7 At a June 2013 Commission meeting in Tampa



             years after the initial interview and once every 5 years
             thereafter if the commission finds that it is not reasonable to
             expect that parole will be granted at a hearing during the
             following years and states the bases for the finding in writing.
             4
              23-21.013 Biennial Interview Procedure
             (1) The Director of Parole Grant shall schedule a biennial
             interview for every eligible inmate within two (2) years of the
             month of the inmate's initial interview. Subsequent
             interviews will be scheduled every twenty-two (22) months,
             unless otherwise specified by a panel of full Commission.
             5
              The pertinent wording of both section 947.1745(6) and rule
23-21.015(1) (2012) is as follows:
             Within 90 days before the effective parole release date
             interview, the commission shall send written notice to the
             sentencing judge of any inmate who has been scheduled for
             an effective parole release date interview. If the sentencing
             judge is no longer serving, the notice must be sent to the
             chief judge of the circuit in which the offender was
             sentenced. The chief judge can designate any circuit judge
             within the circuit to act in place of the sentencing judge.
             6
               The pertinent wording of both section 947.1745(6) and rule 23-21.015(1)
(2012) is as follows: "Within thirty (30) days after receipt of the Commission's notice,
the sentencing judge[,] or the designee[,] shall send to the Commission notice of
objection to parole release, if the judge objects to such release."
             7
                 23-21.015. Effective Parole Release Date Interview Procedure
                                           -4-
pursuant to section 947.06,8 the Commission determined that Mr. Spradley did not meet

the criteria for release, declined to authorize an effective parole release date, and




              (2) The Parole Examiner shall interview the inmate and
              discuss the inmate's institutional conduct. . . .
                       ....
              (5) The Parole Examiner shall reduce the recommendation
              regarding the inmate's institutional conduct to writing and
              forward the recommendation to the Commission. . . .
                       ....
               (9) . . . [T]he Commission shall determine whether the
              inmate meets the criteria for parole release under the
              provisions of Section 947.18, F.S. This determination is to be
              based upon a review of the entire official record in the
              inmate's case.
              8
               947.06. Meeting; when commission may act
              The commission shall meet at regularly scheduled intervals
              and from time to time as may otherwise be determined by
              the chair. . . . To facilitate the ability of victims and other
              persons to attend commission meetings, the commission
              shall meet in various counties including, but not limited to,
              Broward, Duval, Escambia, Hillsborough, Leon, Miami-Dade,
              Orange, and Palm Beach, with the location chosen being as
              close as possible to the location where the parole-eligible
              inmate committed the offense for which the parole-eligible
              inmate was sentenced.

                                            -5-
ordered a parole-interview interval of seven years. See Fla. Admin. Code R. 23-

21.015(6), (9)9; §§ 947.18,10 .1745(6).11

              Almost a year later, Mr. Spradley filed a petition for writ of mandamus in

the Hillsborough County Circuit Court challenging the Commission's denial of parole.

He alleged that the Commission denied his parole and ordered a parole-interview

interval of seven years based on improper considerations. He asked the trial court to



              9
                  Florida Administrative Code rule 23-21.015 provides, in pertinent part, as
follows:
              (6) Within thirty (30) days after receipt of the inmate's parole
              release plan at the Commission headquarters, the full
              Commission shall determine whether to authorize the
              effective parole release date. . . .
                      ....
              (9) [T]he Commission shall determine whether the inmate
              meets the criteria for parole release under the provisions of
              Section 947.18, F.S. This determination is to be based upon
              a review of the entire official record in the inmate's case. . . .
              If the inmate is found to be ineligible for parole release, . . .
              the Commission shall enter an order declining to authorize
              the effective parole release date . . . .
              10
                 947.18. Conditions of parole
              . . . No person shall be placed on parole until and unless the
              commission finds that there is reasonable probability that, if
              the person is placed on parole, he or she will live and
              conduct himself or herself as a respectable and law-abiding
              person and that the person's release will be compatible with
              his or her own welfare and the welfare of society.
              11
                947.1745. Establishment of effective parole release date
                              ....
              (6) . . . [F]or an inmate who has been: (a) Convicted of
              murder or attempted murder . . . , the commission may
              schedule a subsequent review under this subsection once
              every 7 years, extending the presumptive parole release
              date beyond that time if the commission finds that it is not
              reasonable to expect that parole would be granted at a
              review during the following years and states the bases for
              the finding in writing.
                                              -6-
compel the Commission to reconsider properly his release date and review schedule.

See §§ 947.18 (considerations for parole release), .1745(6) (seven-year review

schedule). The Hillsborough County Clerk of Court transferred the petition to the

Pinellas County Circuit Court where Mr. Spradley was originally convicted and

sentenced. The trial court there dismissed the petition.

                         Exhaustion of Administrative Remedies

              In dismissing the petition, the trial court noted that Mr. Spradley failed to

allege that he had exhausted his administrative remedies before the Commission. See

Bush v. State, 945 So. 2d 1207, 1215 (Fla. 2006) (holding mandamus petition is proper

remedy after prisoner exhausts administrative remedies); Finfrock v. Fla. Civil

Commitment Ctr., 34 So. 3d 777 (Fla. 3d DCA 2010) (stating that appellant neither

alleged that he had exhausted administrative remedies nor alleged that none existed).

However, this pleading deficiency does not warrant dismissal where the parties did not

raise this issue. See Henry v. Santana, 62 So. 3d 1122, 1123, 1129 (Fla. 2011); Mehl

v. Tucker, 71 So. 3d 248, 249 (Fla. 2d DCA 2011). In his unsuccessful motion for

rehearing, Mr. Spradley advised the trial court that there were no available

administrative remedies.

                                      Improper Venue

              The trial court also dismissed Mr. Spradley's petition for improper venue.

It concluded that Leon County, where the Commission is based, is the proper venue.

"[V]enue in civil actions brought against the state or one of its agencies or subdivisions,

absent waiver or exception, properly lies in the county where the state, agency, or

subdivision, maintains it principal headquarters." Bush, 945 So. 2d at 1212 (quoting

Carlisle v. Game & Fresh Water Fish Comm'n, 354 So. 2d 362, 363-63 (Fla. 1977)).

                                            -7-
This "home venue privilege," Fish & Wildlife Conservation Comm'n v. Wilkinson, 799

So. 2d 258, 260 (Fla. 2d DCA 2001), "promotes orderly and uniform handling of state

litigation and helps to minimize expenditure of public funds and manpower." Carlisle,

354 So. 2d at 364. See also Barr v. Fla. Bd. of Regents, 644 So. 2d 333, 337 (Fla. 1st

DCA 1994) (stating that litigating cause in Alachua County under sword-wielder doctrine

would minimize costs and facilitate taking evidence because witnesses were there).

              A plaintiff may defeat the home venue privilege under the "sword-wielder"

exception12 recognized in Department of Revenue v. First Federal Savings & Loan

Ass'n, 256 So. 2d 524 (Fla. 2d DCA 1971).

              The question to be answered in these cases may be said to
              be whether the state is the initial sword-wielder in the matter
              and whether the plaintiff's action is in the nature of a shield
              against the state's thrust. If so, then the suit may be
              maintained in the county wherein the blow has been or is
              imminently about to be laid on. On the other hand if plaintiff
              is the prime mover in the premises against a passive or
              dormant state or state agency then venue lies properly in the
              county wherein the state or the agency maintains its official
              headquarters.

Id. at 526.

              The so called 'sword-wielder' doctrine applies only in those
              cases where the official action complained of has in fact
              been or is being performed in the county wherein the suit is
              filed, or when the threat of such action in said county is both
              real and imminent.
                      ....
              This exception to the common law privilege of venue is
              limited to those cases wherein the primary purpose is to
              obtain direct judicial protection from an alleged unlawful
              invasion of the constitutional rights of the plaintiff within the
              county where the suit is instituted, because of the

              12
                We have alternatively described this exception as "[a] waiver of the
state's general venue privilege [that] occurs where a real and imminent deprivation of
the claimant's constitutional rights can be shown." Dep't of Labor & Emp't Sec. v.
Summit Consulting, Inc., 594 So. 2d 862, 863 (Fla. 2d DCA 1992).
                                            -8-
              enforcement or threatened enforcement by a state agency of
              a statute, rule or regulation . . . .

Carlisle, 354 So. 2d at 365; see also Dep't of Revenue, 256 So. 2d at 526.

              Mr. Spradley argues that the sword-wielder exception applies to his case

and that the trial court departed from the essential requirements of law in dismissing his

case and failing to transfer it to the proper venue, which he claims is Hillsborough

County where the Commission's June 2013 hearing occurred.

                               Unlawful Invasion of a Right

              The Commission argues that the sword-wielder doctrine does not apply

because there is no constitutional right to parole. See Cochran v. State, 476 So. 2d

207, 208 (Fla. 1985). However, "there is a right to a proper consideration for parole."

Moore v. Fla. Parole & Probation Comm'n, 289 So. 2d 719, 720 (Fla. 1974), superseded

by section 120.52(10), Fla. Stat. (1983), on other grounds as stated in Johnson v. Fla.

Parole & Prob. Comm'n, 543 So. 2d 875, 875 (Fla. 4th DCA 1989). Moore did not

involve a sword-wielder-doctrine home-venue challenge, but its holding supports Mr.

Spradley's argument that his case could qualify for sword-wielder venue if the

Commission violated his right to a proper parole consideration.

              Our review of the case law indicates that courts apply the sword-wielder

principle to allow venue in the county where the plaintiff's person or affected property is

located. See, e.g., Pinellas Cty. v. Baldwin, 80 So. 3d 366 (Fla. 2d DCA 2012)

(applying sword-wielder exception to Pinellas County governmental taking of

landowner's property in Hillsborough County); Dep't of Labor & Emp't Sec.v. Lindquist,

698 So. 2d 299 (Fla. 2d DCA 1997) (affirming venue in plaintiff's county where

Department of Labor physically seized fishing nets there without procedural due


                                            -9-
process); Dep't of Revenue v. Arvida Corp., 315 So. 2d 235 (Fla. 2d DCA 1975)

(holding Department notice that tax warrant and execution for allegedly past due taxes

had issued was real and imminent official action justifying suit in taxpayers' county);

Rehman v. Fla. Dep't of Law Enf't, 681 So. 2d 854 (Fla. 5th DCA 1996) (holding "sword

wielder" venue lay in Orange County to which FDLE employee claimed FDLE

transferred him in retaliation for exposing financial waste at his previous FDLE job in

Leon County); Barr, 644 So. 2d 333 (reversing transfer of venue to Leon County for

university instructor's suit for retaliatory discharge in Alachua County where Board of

Regents terminated her employment); Bd. of Med. Exam'rs v. Kadivar, 482 So. 2d 501

(Fla. 4th DCA 1986) (affirming venue in St. Lucie County for suit alleging deprivation of

his right to practice medicine there); Graham v. Vann, 394 So. 2d 178 (Fla. 1st DCA

1981) (holding sword-wielder exception applied in suit for intolerable prison conditions

where plaintiff was imprisoned and where rights were allegedly being violated); Dep't of

Transp. v. Morehouse, 350 So. 2d 529 (Fla. 3d DCA 1977) (holding venue proper in

Dade County where Department of Transportation terminated plaintiff's employment for

filing to run for public office); Swinscoe v. State, 320 So. 2d 11 (Fla. 4th DCA 1975)

(reversing order transferring venue to Leon County where taxpayers sued in Broward

County where Department of Revenue executed and recorded a tax warrant against

them). In Hancock v. Wilkinson, 407 So. 2d 969, 970 (Fla. 2d DCA 1981), in which a

boarding home operator and occupants alleged state agency harassment against them

in Highlands County, we described the type of plaintiffs' allegations necessary to apply

the sword-wielder exception as those that "reflect an attempt on their part to shield

themselves against what they claim are unconstitutional blows which the Department



                                           - 10 -
has directed towards them in Highlands County." Id. at 970 "[T]he suit may be

maintained in the county wherein the blow has been or is imminently about to be laid

on." (Id. quoting Dep't of Revenue, 256 So. 2d at 526). The issue, then, is not where

the Commission makes the decision, but where it affects the plaintiff.

              Even though the Commission made the decision at its Tampa meeting, it

directed the "blow" toward Mr. Spradley in Union County, where he was incarcerated.

Suit in Hillsborough County would not "promote[] orderly and uniform handling of state

litigation" or save money and manpower. If the sword-wielder exception applied here,

Union County would be the proper venue. However, Mr. Spradley has not made this

claim. Accordingly, the default, and proper, venue is Leon County.

              Rather than dismissing the petition, the trial court should have transferred

it to Leon County. See Sullivan v. Fla. Parole Comm'n, 920 So. 2d 106, 107 (Fla. 2d

DCA 2006); McClain v. Crawford, 815 So. 2d 777, 778 (Fla. 2d DCA 2002) ("[T]he

remedy for improper venue is a transfer to the proper venue, not dismissal."). The

Commission concedes as much.

                                       Conclusion

              The trial court departed from the essential requirements of law in

dismissing the mandamus petition. See Bush, 945 So. 2d at 1214-15 (holding transfer

to proper venue rather than dismissal was preferred remedy where mandamus petition

filed in improper venue); Vierra v. State, 980 So. 2d 588, 589 (Fla. 2d DCA 2008);

Sullivan, 920 So. 2d at 107; Gibson v. Fla. Parole Comm'n, 895 So. 2d 1291 (Fla. 5th

DCA 2005) ("Where the correct remedy and venue are apparent to the trial judge, it

serves judicial economy to transfer the case rather than simply dismiss it.").



                                          - 11 -
             Therefore, we grant the petition for writ of certiorari. We approve the trial

court's order to the extent it holds that proper venue is in Leon County, quash the order

to the extent it dismissed the petition, and remand for transfer of the case to the Second

Judicial Circuit Court in and for Leon County for further proceedings.

             Petition granted, order affirmed in part and quashed in part, and case

remanded.



NORTHCUTT and SALARIO, JJ., Concur.




                                          - 12 -
