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Larcher v. Department of Highway Safety & Motor Vehicles7/2/1999
Petition for Certiorari Review of Decision from the Circuit Court for Brevard County, Acting in its Appellate Capacity.
Petitioners William S. Larcher, Velma L. Betty and Jacques Lawlor seek certiorari review of the circuit court's order denying their petition for writ of prohibition. We elect to treat their petition as a direct appeal, see Guzzetta v. Hamrick, 656 So.2d 1327 (Fla. 5th DCA), rev. den., 663 So.2d 630 (Fla. 1995), and affirm.
Petitioners all pled no contest to DUI in the county court, reserving the right to challenge the denial of their motions to suppress breath tests. The county court entered orders staying the imposition of petitioners' sentences and the suspension of their driving privileges pending their appeals to the circuit court. Copies of the stay orders were sent to the Florida Department of Highway Safety and Motor Vehicles. The Department issued orders suspending petitioners' driving privileges notwithstanding the county court's stay orders. Petitioners then filed a petition for writ of prohibition in the circuit court. After a hearing, the circuit court denied the petition on authority of State Dep't of Highway Safety & Motor Vehicles v. Degrossi, 680 So. 2d 1093 (Fla. 3d DCA 1996). Petitioners now seek review of the circuit court's order in this court.
At the onset we observe that prohibition would not have been the proper remedy for petitioners. Prohibition is preventive, not corrective, and may not be used to undo what has already been done. See State ex rel. Dep't of Health & Rehabilitative Servs. v. Upchurch, 394 So. 2d 577 (Fla. 5th DCA 1981). As indicated, the Department had already issued orders suspending petitioners' driving privileges.
In any event, on the merits we conclude that the Department properly suspended petitioners' driving privileges. Degrossi, relied upon by the circuit court and the Department, is virtually indistinguishable from the instant case. In Degrossi, the defendant therein pled no contest to DUI and reserved his right to appeal the denial of his motion to dismiss the DUI charge. Although the county court convicted him of DUI, it granted his motion to stay the conviction and sentence pending his appeal from the denial of the motion to dismiss. The Department, upon receiving notice of the conviction, sent defendant an order of license revocation, suspension or cancellation pursuant to section 322.26(2), Florida Statutes (1995), which mandates that the Department revoke the license of any individual convicted of DUI.
The county court then granted defendant's motion to stay the revocation and issued a rule to show cause when the Department failed to comply with the stay order. Even though section 322.28(6) states that "no suspension or revocation of a driving privilege shall be stayed upon appeal of the conviction or order that resulted therein," the trial court ordered the Department to stay the driver license revocation pending appeal, though certifying a question of great public importance to the Third District.
The Third District in Degrossi reversed the county court and remanded to vacate the stay. Degrossi noted that section 322.26(2) imposes a duty upon the Department to suspend the driver's license of any person convicted of DUI to protect the public from potentially dangerous drivers and that section 322.28(6) provides that "no suspension or revocation of a driving privilege shall be stayed upon appeal of the conviction or order that resulted therein." Degrossi concluded that the county court as trial court lacked jurisdiction to stay an administrative revocation that is not part of the punishment involved in the criminal conviction. Degrossi reasoned that because
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