Opinion
Case No. 2D19-1570
05-15-2020
Roy WHITED, DOC #843130, Appellant, v. FLORIDA COMMISSION ON OFFENDER REVIEW, Appellee.
Roy Whited, pro se. Mark Hiers, Assistant General Counsel, Florida Commission on Offender Review, Tallahassee, for Appellee.
Roy Whited, pro se.
Mark Hiers, Assistant General Counsel, Florida Commission on Offender Review, Tallahassee, for Appellee.
MORRIS, Judge. Roy Whited appeals from a nonfinal order transferring venue of his petition for writ of mandamus. He filed the petition in the circuit court challenging a decision by the Florida Commission on Offender Review (the Commission) that there should be no change to Whited's presumptive parole release date (PPRD). He argues that the circuit court's sua sponte transfer of venue to Leon County was in error because his petition contained sufficient allegations to establish that venue was proper in Polk County and that he was denied his right to a proper consideration for parole. Because we conclude that Whited failed to clearly raise a due process argument in this appeal and, in fact, rejected the proposition that an evidentiary hearing to determine the venue issue was necessary, we affirm.
BACKGROUND
In 1981, Whited was sentenced to life in prison for kidnapping and sexual battery and to thirty years in prison for attempted first-degree murder. His PPRD is December 15, 2020. The Commission conducted an interview pursuant to section 947.174, Florida Statutes (2016), and Florida Administrative Code Rule 23-21.013, but ultimately concluded in May 2017 that there would be no change to Whited's PPRD.
In January 2018, Whited filed his petition in Polk County, where he is incarcerated, and he argued, among other things, that he was denied his right to a proper consideration for parole, that the Commission arbitrarily and capriciously decided that there should be no change in his PPRD, and that he was denied due process by the Commission. He also alleged that the sword-wielder exception to the Commission's home venue privilege applied and that venue was proper in Polk County.
The circuit court entered an order transferring the petition to Leon County. The order states that the court reviewed the petition, the case file, and the applicable law. The court found that "[t]he Petitioner is seeking review of a Commission decision that there should be no change in his Presumptive Parole Release Date. Venue for such a mandamus petition is where the Florida Commission on Offender Review is headquartered." The order does not cite any law or mention the sword-wielder exception. Our record does not indicate that the Commission filed a motion to transfer venue or that Whited was given notice and an opportunity to be heard before the transfer of venue.
ANALYSIS
In a civil action against a governmental agency, the home venue privilege provides that venue "lies in the county where the agency maintains its principal headquarters." Fish & Wildlife Conservation Comm'n v. Wilkinson, 799 So. 2d 258, 260 (Fla. 2d DCA 2001). Presumably, this is why the circuit court transferred Whited's petition to Leon County where the Commission is headquartered. However, an exception to the home venue privilege is the "sword-wielder" doctrine. Spradley v. Parole Comm'n, 198 So. 3d 642, 646 (Fla. 2d DCA 2015). "Figuratively, this exception allows a plaintiff to bring an action against a state agency as a shield from an attack upon the plaintiff by the state's sword." Wilkinson, 799 So. 2d at 260.
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 enforcement or threatened enforcement by a state agency of a statute, rule or regulation ....
Spradley, 198 So. 3d at 646-47 (quoting Carlile v. Game & Fresh Water Fish Comm'n, 354 So. 2d 362, 365 (Fla. 1977) ).
In Spradley, the Commission suspended the PPRD and later declined to authorize an effective parole release date. 198 So. 3d at 643, 645. This court recognized that Spradley's "case could qualify for sword-wielder venue if the Commission violated his right to a proper parole consideration." Id. at 647. Spradley had claimed venue was proper in Hillsborough County where the Commission met. The court noted that Spradley was incarcerated in Union County and that Union County would be the proper venue if the sword-wielder exception applied. Id. at 648. However, because Spradley failed to make that claim, this court determined that "the default, and proper, venue [was] Leon County." Id. The court concluded that the trial court should have transferred the petition to Leon County rather than dismissing it. Id. The Spradley decision does not state whether the Commission had filed a motion to dismiss for improper venue or whether Spradley had notice or an opportunity to be heard before the court determined venue was proper in Leon County.
We do not disagree with the proposition that reversible error occurs when a circuit court sua sponte transfers venue without providing the plaintiff with notice and an opportunity to be heard on the venue issue. See Kunselman v. Scott, 162 So. 3d 243, 243 (Fla. 1st DCA 2015) ; Smith v. McDonough, 955 So. 2d 644, 645 (Fla. 4th DCA 2007). Yet the issue of due process must be sufficiently raised on appeal in order for this court to grant relief on that basis. A party's failure to fully brief and argue the issue of due process results in a waiver of that issue. See Victorino v. State, 23 So. 3d 87, 103 (Fla. 2009) ; Filarski v. Reemployment Assistance Appeals Comm'n, 97 So. 3d 278, 281 (Fla. 4th DCA 2012).
Nowhere within Whited's arguments in his appellate brief does he assert that the circuit court committed a due process violation. Nor does he argue that reversible error occurred when the circuit court transferred venue without providing him with notice and an opportunity to be heard. Rather, the closest that he comes to making a due process argument is his argument that the circuit court erred by sua sponte transferring venue because he sufficiently raised the sword-wielder exception in his petition below. Quoting PricewaterhouseCoopers LLP v. Cedar Resources, Inc., 761 So. 2d 1131, 1133 (Fla. 2d DCA 1999), he generally acknowledges that circuit courts "need[ ] to resolve any relevant factual disputes and then make a legal decision whether the plaintiff's venue selection is legally supportable." And he contends that, ordinarily, this court "would reverse and remand this cause to the trial court to hold a hearing to determine whether" Whited's mandamus petition sufficiently raised the sword-wielder exception. He cites Smith, 955 So. 2d at 645, in support of his assertion that a hearing is typically required. Yet Smith is factually distinguishable because there, the appellant raised the due process issue on appeal and the Florida Department of Corrections "confessed error based on [that] procedural ground." Id. But in this case, Whited has not argued that a reversal is required based upon a due process violation committed by the circuit court. Rather, Whited argues that his mandamus petition sufficiently alleges that he was denied his right to a proper parole consideration. Thus, what Whited seeks on appeal is not a procedural reversal to rectify the lack of an evidentiary hearing, but a reversal and remand so that the Polk County Circuit Court can rule on Whited's mandamus petition on the merits. Smith is also distinguishable from this case because there has been no concession made by the Commission that a due process violation occurred.
We reject the temptation to construe Whited's vague reference to the sua sponte nature of the circuit court's order and his conclusory statement that this court would "ordinarily" reverse and remand for the circuit court to hold a hearing as an assertion of a procedural due process argument. We acknowledge that pro se pleadings are to be liberally construed. See Sloppy v. State, 208 So. 3d 313, 313 n.1 (Fla. 2d DCA 2016). But isolated, perfunctory references, vague comments, and conclusory statements are not sufficient to raise an issue for appellate review. See, e.g., Victorino, 23 So. 3d at 103 (rejecting appellant's due process arguments as waived where the arguments were "not entirely clear from [the] briefs" and where the points raised were "presented in a conclusory manner"); Caldwell v. Fla. Dep't of Elder Affairs, 121 So. 3d 1062, 1064 (Fla. 1st DCA 2013) (explaining that "two isolated references" were "perfunctory" and "insufficient to present an argument for appellate review"); Hammond v. State, 34 So. 3d 58, 59 (Fla. 4th DCA 2010) ("Claims for which an appellant has not presented any argument, or for which he provides only conclusory argument, are insufficiently presented for review and are waived." (first citing Doorbal v. State, 983 So. 2d 464, 482-83 (Fla. 2008), and then citing Shere v. State, 742 So. 2d 215, 217 n.6 (Fla. 1999) )); cf. Roop v. State, 228 So. 3d 633, 642 (Fla. 2d DCA 2017) (opining that dissenting opinion was based on an argument not presented within appellant's brief and thus did not constitute a basis for reversal).
Had Whited argued that the circuit court committed a due process violation or reversibly erred by transferring venue without a motion from the Commission or an evidentiary hearing to determine the venue issue and had he therefore sought a reversal and remand on that basis, we would have agreed that a reversal is necessary. But Whited's vague references and singular statement about what this court would "ordinarily" do, followed by a request for relief well beyond that is not an argument for reversal on due process grounds.
In fact, a close reading of Whited's brief leads us to the opposite conclusion: he does not want an evidentiary hearing to determine whether venue is proper in Polk County. After noting what this court would "ordinarily" do in circumstances such as those that occurred in this case, Whited states: "However, Whited's petition sufficiently alleges that he was denied his right to a proper consideration for parole," and in his conclusion, he asks this court to reverse and remand "with directions [to the circuit court] to decide" that issue "on the merits." The substance of Whited's brief then makes clear that not only does he fail to clearly articulate a due process argument, but he also expressly rejects the necessity for an evidentiary hearing to determine the venue issue. Were we to reverse for an evidentiary hearing, we would be reading an argument into Whited's brief that he affirmatively disavowed.
Accordingly, we affirm.
ROTHSTEIN-YOUAKIM, J., Concurs.
SILBERMAN, J., Dissents with opinion.
SILBERMAN, Judge, dissenting.
I cannot agree with the majority's conclusion that Whited did not present an adequate basis for reversal in this appeal. I also cannot agree that he waived a remand for further proceedings, which is the appellate relief available to him. For these reasons, I dissent.
The majority recognizes that Whited's "pro se pleadings are to be liberally construed" but then construes his brief narrowly, disregarding the key points that Whited makes. Whited argues that his petition for writ of mandamus contained sufficient allegations to support venue in Polk County. Further, he argues that the trial court, without any responsive pleading by the Commission and without notice and an opportunity to be heard, improperly transferred venue to Leon County, thereby warranting reversal. The Commission, in its answer brief, does not dispute that the trial court acted sua sponte, before the Commission filed any response to the petition and without notice and a hearing. The trial court's order on appeal does not find any deficiency in the allegations contained in Whited's petition. Instead, without addressing the allegations concerning the sword-wielder exception to the Commission's home venue privilege, the trial court simply concluded that venue exists in Leon County, the Commission's home county.
In his brief, Whited explains the basis for his petition and his claim that the sword-wielder exception applies to his case. He succinctly and specifically states his argument as follows:
The trial court erred by sua sponte transferring Whited's mandamus petition from the Polk County circuit court to the Leon County circuit court because it made an undisputed claim that he "can use the 'sword-wielder' exception recognized in First Federal [ Department of Revenue v. First Federal Savings & Loan Ass'n of Fort Myers, 256 So. 2d 524 (Fla. 2d DCA 1971),] to defeat the Commission's 'home venue privilege.' "
Citing to Department of Agriculture v. Middleton, 24 So. 3d 624, 627 (Fla. 2d DCA 2009), and Fish & Wildlife Conservation Commission v. Wilkinson, 799 So. 2d 258, 260 (Fla. 2d DCA 2001), he argues that once a plaintiff pleads sufficient allegations to prove the applicability of an exception to the home venue privilege, the government agency has the burden to prove entitlement to the home venue privilege. He adds, with additional citation to case law, that when a defendant files a motion to transfer venue, if there is a factual dispute the trial court must resolve that dispute based on competent, substantial evidence. Here, though, the Commission did not file a motion or otherwise challenge in the trial court the adequacy of Whited's allegations concerning the sword-wielder exception.
I acknowledge that Whited does not use the term "due process" in his brief, and perhaps his brief is not as articulate as the majority would require. But contrary to the majority's conclusion, the substance of his argument is indeed a clear argument with cited authorities explaining that the trial court erred by sua sponte transferring venue without a pending motion before it, without notice, and without a hearing. Construing Whited's brief with the liberality that the majority recognizes should be afforded to it requires that we reverse.
The majority also concludes that Whited expressly rejected the necessity for an evidentiary hearing on the venue issue. Again, I cannot agree. He acknowledges that the ordinary result of an appeal such as this would be to reverse and remand for a hearing to determine whether the sword-wielder exception applies. Then, quoting extensively from Spradley v. Parole Commission, 198 So. 3d 642 (Fla. 2d DCA 2015), he maintains that his petition contained the necessary allegations to qualify for the exception to the home venue privilege. He concludes his brief by requesting that the trial court's decision be reversed and remanded with directions to decide on the merits whether he was denied the right to proper consideration for parole. Although Whited's request is for directions beyond that to which he is entitled, in my view the key point is that he correctly argues that the trial court's order must be reversed and the case remanded. Whited's request simply does not amount to a waiver or rejection of his entitlement to a reversal of the trial court's order. Ultimately, it is for this court to determine the appropriate directions for remand.
In Health Options, Inc. v. Kabeller, 932 So. 2d 416, 418-19 (Fla. 2d DCA 2006), both parties sought summary judgment in the trial court. The trial court ruled in favor of Kabeller, and Health Options appealed. Id. at 419-20. Health Options argued "that in addition to reversing the summary judgment, we should remand for entry of judgment in its favor." Id. at 421. We reversed but concluded that the proper relief was to reverse and remand for further proceedings. Id. The fact that Health Options, like Whited, sought greater relief on appeal than was appropriate did not preclude Health Options from obtaining a reversal. Whited should not be treated any differently.
Finally, it bears noting that the Commission does not make any of the arguments on which the majority relies to deny relief concerning the adequacy of Whited's brief or the purported waiver of his right to a reversal and remand for further proceedings. Instead, it challenges the adequacy of the allegations in Whited's petition and his entitlement to any relief from the trial court. Had the Commission made these arguments and challenged venue in the trial court, the trial court would have been able to address those contentions. Unfortunately, the trial court erroneously transferred venue before the Commission filed any response to the petition.
For all these reasons, I would reverse and remand for the trial court to determine the venue issue if the Commission challenges venue on remand, after proper notice and a hearing, and such other issues as may be properly before it.