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Vichich v. Department of Highway Safety and Motor Vehicles9/21/2001
Petition for Writ of Certiorari from the Circuit Court for Pinellas County; Charles W. Cope, Judge.
Andrew Vichich seeks certiorari review of a circuit court order that denied his request for certiorari relief from an administrative order rendered by the Department of Highway Safety and Motor Vehicles (DHSMV). The administrative order from the DHSMV permanently revoked Mr. Vichich's driver's license based upon internal records containing non-certified information from Wisconsin indicating that Mr. Vichich had received three DUI convictions more than ten years ago. Although Mr. Vichich has never denied these convictions under oath, he sought review of the DHSMV's order by means of a petition for certiorari to the circuit court as authorized by section 322.31, Florida Statutes (1999). In reviewing the administrative order, the circuit court sought to supplement its record and make factual findings. Because the circuit court departed from the essential requirements of law by engaging in fact-finding and by considering evidence beyond the appellate record during the certiorari proceeding, we grant the petition. We remand this case to the circuit court to conduct a proper certiorari review.
I. THE PROCEEDINGS PRIOR TO THIS CERTIORARI PETITION
Mr. Vichich pleaded no contest in county court to a charge of driving under the influence of alcohol on May 6, 1999. The county court entered a judgment and sentence, but did not suspend or revoke Mr. Vichich's license. On June 17, 1999, however, the DHSMV mailed an administrative order to Mr. Vichich permanently revoking his license. This order, entered without prior notice to Mr. Vichich, stated that the reason for the revocation was the May 6, 1999, conviction for DUI and three prior Wisconsin convictions for "operating while impaired." One of the Wisconsin convictions allegedly occurred in 1981 and the other two in 1984. The following information was provided in fine print at the bottom of the DHSMV's order:
HOW TO APPLY FOR ADMINISTRATIVE HEARING TO REVIEW YOUR RECORD: If you believe that you have any legal basis to show cause why this action is unjustified, you may request a RECORD REVIEW at which time any argument, other than the validity of a conviction, may be presented to a hearing officer for review. A request for a record review shall not toll the time in which to file a writ of certiorari in accordance with S. 322.31 F.S. If you believe there is an error in a court entry on your driving record as listed above, you must contact the court involved as the court must send written certification to our Department for a Review under S. 120.57(2) F.S. before any court entry or action may be changed. . . . Appeals of this order may be initiated within 30 days of the date of this order by following the procedure specified in S. 322.31 F.S.
Upon receiving this order, Mr. Vichich sought immediate review by filing a petition for writ of certiorari with the circuit court in July 1999. Mr. Vichich attached to his petition a document entitled "Certified Record" from the Wisconsin Department of Transportation and alleged, "The State of Wisconsin indicates in its certified record no convictions for Driving Under the Influence ."
The DHSMV filed a response to the petition and attached a "Driving Record Abstract" from the State of Wisconsin, Department of Transportation, dated in 1985. This abstract appears to be a photocopy or microfiche copy of a coded document created by the Wisconsin Department of Transportation. This abstract is not certified or notarized. Our record contains no information about when, how, or why the DHSMV received this document.
After reviewing the petition and the respo
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