IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
STATE OF FLORIDA, NOT FINAL UNTIL TIME EXPIRES TO
DEPARTMENT OF HIGHWAY FILE MOTION FOR REHEARING AND
SAFETY AND MOTOR DISPOSITION THEREOF IF FILED
VEHICLES,
CASE NO. 1D13-2471
Petitioner, CORRECTED PAGES: pg 42
CORRECTION IS UNDERLINED IN RED
MAILED: September 12, 2014
v. BY: NMS
JOSEPH P. WIGGINS,
Respondent.
_____________________________/
Opinion filed September 4, 2014.
Petition for Writ of Certiorari—Original Jurisdiction.
Kimberly A. Gibbs, Orlando, for Petitioner.
David M. Robbins and Susan Z. Cohen, Jacksonville, for Respondent.
MAKAR, J.
The Department of Highway Safety and Motor Vehicles seeks review of a
circuit court order overturning a hearing officer’s administrative order, which had
upheld the suspension of Joseph P. Wiggins’s driver’s license. The narrow but
important issue presented is whether the circuit court, acting in its appellate
capacity, erred by concluding that its independent review and assessment of events
on a video of the traffic stop trumped the hearing officer’s factual findings, which
were based on the arresting officer’s testimony and report. We hold that it did and
grant the petition for certiorari.
I.
In August 2011, Deputy J.C. Saunders initiated a traffic stop of Mr.
Wiggins, who was driving his pickup truck down Blanding Boulevard, a main
thoroughfare in Clay County, Florida. A camera mounted on the dashboard of the
deputy’s vehicle recorded the movement of Mr. Wiggins’s vehicle from the time
the deputy first observed it, while Mr. Wiggins pulled into a gas station parking lot,
and for approximately twelve minutes thereafter.
During the stop, Deputy Saunders requested that Mr. Wiggins perform a
field sobriety test, but he declined. Deputy Saunders then arrested Mr. Wiggins for
DUI and transported him to the county jail where, again, Mr. Wiggins declined to
submit to a sobriety test. Due to these refusals, the Department placed an
administrative suspension on Mr. Wiggins’s driver’s license.
Mr. Wiggins requested a formal review hearing to demonstrate that probable
cause did not exist for the stop of his vehicle. Deputy Saunders and Robert Burch,
the breath test operator, testified at the hearing and the arrest and booking report
was admitted in evidence. The video of the stop was entered in evidence and was a
focus of a portion of the proceeding, which consisted primarily of Mr. Wiggins’s
2
attorney examining Deputy Saunders. Throughout the examination, Deputy
Sanders testified while referring to the video. The hearing officer controlled and
played the DVD player, starting and stopping the video player as necessary to view
the portions related to the deputy’s testimony. During this examination, counsel for
Mr. Wiggins only once specifically asked Deputy Saunders whether his written
report was consistent with what appeared on the video. The deputy confirmed that
his entire report as written was supported by the video, pointing out where the
vehicle’s movement and pattern corresponded to what he said in his report with a
few limited exceptions. One was that when he first saw Mr. Wiggins’s vehicle and
became suspicious about its driving pattern, the vehicle was within his eyesight but
beyond the capabilities of the camera to capture (“the video doesn’t always show
everything I can see as far as at a distance”). Another was when Deputy Saunders
voluntarily pointed out (before counsel asked him to do so) that his report erred in
one respect by saying that his police cruiser at one point changed lanes first when it
was Mr. Wiggins’s vehicle that did so. The final was when Deputy Saunders
thought Mr. Wiggins put his hands on his truck as he exited to maintain balance,
which Mr. Wiggins’s counsel noted did not actually happen.
Based upon the testimony and evidentiary record that included the video, the
hearing officer made the following findings of fact:
On August 19, 2011, at approximately 2:10 a.m. Deputy J. C.
Saunders of the Clay County Sheriff’s Office observed a vehicle
3
swerving within the lane, almost striking the right side curb on
several occasions, and then braking erratically for no apparent
reason. He also paced the vehicle and determined that it was
traveling 30 MPH in a 45-MPH zone. Suspecting that the driver
might be impaired, Deputy Saunders conducted a traffic stop.
Deputy Saunders observed the driver, Mr. Joseph Bryant Wiggins,
Sr., to have an extremely strong odor of an alcoholic beverage
coming from his breath, bloodshot, glassy eyes, a flushed face, and
his movements were slow and deliberate. Mr. Wiggins admitted to
consuming a few drinks when asked about his alcohol consumption.
Mr. Wiggins refused to submit to field sobriety exercises and was
placed under arrest for DUI. Based on the foregoing, I find that the
petitioner was placed under lawful arrest for DUI. At the Clay
County Jail, the implied consent warning was read and Mr. Wiggins
refused to submit to the breath test.
Based on these factual findings, the hearing officer held that probable cause existed
to believe that Mr. Wiggins was driving under the influence; that Mr. Wiggins
refused to submit to a urine, blood, or breath-alcohol test after being requested to
do so; and that Mr. Wiggins was told that his refusal to submit to a sobriety test
would result in suspension of his license. The administrative order thereby
affirmed the suspension of Mr. Wiggins’s driver’s license.
Mr. Wiggins then filed a petition for certiorari in circuit court, seeking
review of the hearing officer’s order, claiming it departed from the essential
requirements of law and was not supported by competent substantial evidence.
Specifically, he argued that the arrest and booking report statements directly
conflicted with events on the video of the traffic stop. The circuit court, after
4
independently reviewing the video, held that the administrative order was flawed
because the video contradicted portions of the officer’s testimony and report.
In reaching this conclusion, the trial court compared and contrasted some—
but not all—of the information in the arrest/booking report with events on the
video. For example, the report stated that “the vehicle was drifting and weaving in
its own lane traveling at 30 mph in a 45 mph zone, the passenger side tires crossed
over the fog line and nearly struck the raised curb before swerving back into the
lane.” The court disagreed with this characterization, finding that the “video clearly
refutes this evidence; in the video the vehicle does not drift and weave within its
own lane. Furthermore, the passenger side tires do no not cross over the fog line
nor do they come close to striking the raised curb.” The report also claimed that
“after coming to flashing yellow lights at the intersection . . . [Mr. Wiggins] braked
for no reason and then accelerate [sic].” Contrarily, the trial court found that the
video showed Mr. Wiggins “did brake slightly when coming to the flashing yellow
lights” but that he slowly accelerated after passing the lights, compared to the
report, which stated he “braked for no reason and then accelerated.” The court
acknowledged that Mr. Wiggins momentarily braked, but disagreed that Mr.
Wiggins swerved to the right and almost hit the curb as he passed through an
intersection. Finally, the report claimed that Mr. Wiggins “drifted into a turn lane”
and “[w]hile making a wide left turn he had to realign his truck as he straightened
5
out.” Disagreeing once again, the trial court reviewed the video and concluded that
Mr. Wiggins deliberately changed lanes and the turn into the intersection was
normal.
The trial court conceded that Deputy Saunders’s testimony coupled with the
report supported the factual findings of the hearing officer. Nonetheless, it held
that “this testimonial evidence is flatly contradict [sic] by the objective evidence on
the videotape.” It concluded that in “[v]iewing the entire record evidence, neither
the testimony of Deputy Saunders nor the arrest and booking report constitutes
competent substantial evidence on which the hearing officer could rely.”
Acknowledging that it could not reweigh the evidence or substitute its judgment
for that of the hearing officer, it supported its approach by relying on Julian v.
Julian, 188 So. 2d 896 (Fla. 2d DCA 1966), for the proposition that “where the
evidence is objective and there is not a determination of credibility, the reviewing
court is in the exact same position as the hearing officer.” Apparently believing it
was “in the exact same position as the hearing officer” as to the evidence, the trial
court concluded that it “was unreasonable as a matter of law for the hearing officer
to accept Deputy Saunders [sic] report and testimony after this evidence was
shown to be erroneous and flatly contradicted by the objective images of the
videotape.” As a result, the trial court’s order overturned the hearing officer’s order
and the administrative suspension of Mr. Wiggins’s driver’s license, as well.
6
II.
Review of the circuit court’s order entails second tier certiorari review, by
which two limited questions are posed: whether the circuit court afforded
procedural due process and applied the correct law. Haines City Cmty. Dev. v.
Heggs, 658 So. 2d 523, 530 (Fla. 1995); Dep’t of High. Saf. & Motor Veh. v.
Trimble, 821 So. 2d 1084, 1086 (Fla. 1st DCA 2002). This level of review is
narrower than a circuit court’s first tier certiorari review, which reviews an
administrative agency’s decision for three components: (1) whether procedural due
process was accorded, (2) whether the essential requirements of law were
observed, and (3) whether the factual findings are supported by competent
substantial evidence. Educ. Dev. Ctr, Inc. v. City of W. Palm Beach Zoning Bd. of
Appeals, 541 So. 2d 106, 108 (Fla. 1989).
At issue in this case is only whether the circuit court applied the correct law.
The Department argues it did not, pointing out that the trial court’s only job was to
determine whether the hearing officer’s findings of fact were supported by
competent substantial evidence as announced in Dusseau Metropolitan Dade
County Board of County Commissioner, 794 So. 2d 1270, 1275-76 (Fla. 2001) and
prior similar precedents. By conducting what amounted to a de novo review of the
evidence and impermissibly reweighing of it, the circuit court departed from the
well-established legal principle that it was without authority to do so. Mr. Wiggins
7
counters that the deputy’s testimony and report upon which the hearing officer
relied was not competent substantial evidence in light of the video. He argues that
the trial court was entitled to conclude that the video objectively demonstrated that
the report and the deputy’s testimony were erroneous and thereby not competent
substantial evidence; he asserts the trial court’s methodology was not prohibited
under any clearly established caselaw, including Dusseau, to which we now turn.
A. Dusseau as Clearly Established Law
Whether Dusseau is clearly established law applicable in this case requires
an examination of what rule of law our supreme court established or reaffirmed. 1
In Dusseau, a Baptist congregation owned acreage in Miami-Dade County upon
which it sought to build a large church. Over the objections of a nearby
homeowner, the county commission approved the application after holding an
evidentiary hearing on the matter at which evidence from both sides of the disputed
matter was presented. 794 So. 2d at 1272. In its appellate capacity, the circuit
court—after reviewing all the evidence submitted by both sides—reversed, finding
no competent substantial evidence that the proposed church construction met the
requisite criteria for a special exception; to the contrary, the circuit court held that
1
See Dep’t of High. Saf. & Motor Veh. v. Edenfield, 58 So. 3d 904, 906 (Fla. 1st
DCA 2011) (“Clearly established law can be derived not only from case law
dealing with the same issue of law, but also from an interpretation or application of
a statute, a procedural rule, or a constitution provision.”).
8
competent substantial evidence existed showing the church did not meet requisite
criteria. Id.
On second tier certiorari review, the Third District made two rulings. First, it
held that the “circuit court departed from the essential requirements of law when it
reweighed evidence and completely ignored evidence that supports the
Commission's ruling.” Id. at 1275. Second, it said that its own “review of the
evidence clearly demonstrates that the Commission’s ruling was supported by
competent substantial evidence[.]” Id.
The supreme court, after reviewing principles of first and second tier
certiorari, upheld the district court’s first ruling but reversed its second (the latter
because it is not a district court’s job to review the record and make its own merits
ruling). As to the first ruling, the supreme court affirmed as “proper” the district
court’s conclusion that the trial court “departed from the essential requirements of
law when it reweighed evidence and completely ignored evidence” supporting the
Commission’s ruling. Id. Setting the tone that nomenclature does not matter, it
began by noting that “[a]lthough the circuit court phrased its reversal in terms of
‘competent substantial evidence,’ the plain language of its order shows that the
court in fact reweighed the evidence, at length.” Id. It is not the label a circuit court
uses to describe its analysis that matters; instead, it is whether the circuit court
applied the established and limited methodology of looking only for whether
9
competent substantial evidence existed in support of the challenged administrative
decision. The supreme court described the circuit court’s erroneous approach as
follows:
Instead of simply reviewing the Commission’s decision to determine
whether it was supported by competent substantial evidence, the court
also reviewed the decision to determine whether it was opposed by
competent substantial evidence. The circuit court then substituted its
judgment for that of the Commission as to the relative weight of the
conflicting evidence. The circuit court thus usurped the fact-finding
authority of the agency.
Id. Given the circuit court’s improper approach to evaluating the record evidence,
the supreme court sided with the district court, holding that it was a departure from
the essential requirements of law—and an application of the “wrong law”—for the
circuit court to review and reweigh the evidence, essentially deciding “anew the
merits” of the case. Id. As the supreme court explained, the circuit court applied
the “wrong law” by engaging in the type of evidence review/fact-finding that is to
be done by an agency or administrative hearing officer (the so-called Irvine2
standard); instead, the circuit court was to engage in the far more limited approach
on first tier review, which is a search of the record for the existence of competent
substantial evidence in support of the decision.
2
See Dusseau, 794 So. 2d at 1273 (discussing Irvine v. Duval Cnty. Planning
Comm’n, 495 So. 2d 167 (Fla. 1986)).
10
This clearly established legal principle in Dusseau—that a circuit court
applies the “wrong” or “incorrect” law when it reweighs or reevaluates conflicting
evidence and decides the merits of the underlying dispute anew—was previously
well-established. As the supreme court pointed out in Dusseau, its previous
precedents had announced such a rule. See 794 So. 2d at 1273-75 (discussing
Florida Power & Light Co. v. City of Dania, 761 So. 2d 1089 (Fla. 2000) and City
of Deerfield Beach v. Vaillant, 419 So. 2d 624 (Fla. 1982)). Indeed, the court
explained as follows:
Under Vaillant, the district court was required to determine whether
the circuit court applied the correct law. As noted above, according to
the plain language of its order, the circuit court reweighed the
evidence and decided anew the merits of the special exception
application. The circuit court thus applied the wrong law (i.e., instead
of applying the Vaillant standard of review, the court reapplied the
Irvine standard of proof), and this is tantamount to departing from the
essential requirements of law (as the district court ruled).
794 So. 2d at 1275 (quoting Florida Power & Light, 761 So. 2d at 1093) (emphasis
added)). In light of the many commanding precedents on this point of law, this
Court cited Dusseau for the following statement:
[O]ne ‘clearly established principle of law’ is that, on first-tier
certiorari review, a circuit court is limited to determining whether the
administrative findings and judgment are supported by competent
substantial evidence. Whether the record also contains competent
substantial evidence that would support some other result is irrelevant.
11
Clay Cnty. v. Kendale Land Dev., Inc., 969 So. 2d 1177, 1181 (Fla. 1st DCA
2007). We now turn to whether the circuit court’s approach in this case conformed
to these clearly-established principles in Dusseau and like precedents.
B. Applying Dusseau to This Case
As Dusseau explained, a circuit court is only permitted to determine whether
an agency’s decision was supported by competent substantial evidence. 794 So. 2d
at 1275 (“the court should review the record to determine simply whether the
Commission's decision is supported by competent substantial evidence.”). Stated
differently, this limited review boils down to a single-focused inquiry:
The sole issue before the court on first-tier certiorari review is
whether the agency’s decision is lawful. The court’s task vis-a-vis the
third prong of Vaillant is simple: The court must review the record to
assess the evidentiary support for the agency’s decision. Evidence
contrary to the agency’s decision is outside the scope of the inquiry at
this point, for the reviewing court above all cannot reweigh the “pros
and cons” of conflicting evidence. While contrary evidence may be
relevant to the wisdom of the decision, it is irrelevant to the
lawfulness of the decision. As long as the record contains competent
substantial evidence to support the agency’s decision, the decision is
presumed lawful and the court’s job is ended.
Id. at 1276 (emphasis added). The emphasized language—as applied to this case—
shows how the circuit court went beyond the specific analytical parameters of
Dusseau and its progeny, thereby applying the incorrect law.
The circuit court—in reaching its ultimate legal judgment—focused
exclusively on the video, which both Wiggins and the court deemed to be
12
“evidence contrary to the agency’s decision.” That was error. The sole starting
(and ending) point is a search of the record for competent substantial evidence
supporting the decision. The proper approach is narrow here, focusing on whether
the officer’s testimony, the arresting/booking report, or the video—or portions
thereof—support the hearing officer’s factual findings. See City of Jacksonville
Beach v. Car Spa, Inc., 772 So. 2d 630, 631-32 (Fla. 1st DCA 2000) (“[I]t is clear
that . . . rather than reviewing the entire record to determine whether the Planning
Commission's decision was supported by competent substantial evidence, the
circuit court considered only portions of the record, and reweighed the evidence,
substituting its judgment for that of the Planning Commission as to the relative
weight of that evidence.”). The existence of inconsistencies or contradictions in the
overall evidentiary record does not negate a hearing officer’s findings; an
evidentiary record need not have one-sided purity to prevail. Id. Besides that,
putting contrary evidence on the judicial scales is “outside the scope of the
inquiry” at the circuit court level and amounts to a pros/cons approach that
Dusseau prohibits.
Within its analysis, the trial court tacitly conducted the type of review
envisioned by Dusseau because it explicitly said that “[s]tanding alone, the arrest
and booking report and the testimony by Deputy Sander would support the
findings of the hearing officer.” Its inquiry at that point—as explained in
13
Dusseau—was thereby “ended.” 794 So. 2d at 1276. Whatever misgivings it may
have had about possible conflicts between the video and the officer’s
testimony/report were “outside the scope of the inquiry” as Dusseau holds. If
portions of the report, or portions of the officer’s testimony, or portions of the
video, or some combination of the three, provided evidentiary support for the
hearing officer’s findings, judicial labor was at its end.
Beyond the clarity of Dusseau and its progeny on this legal point, good
policy reasons support the narrowing of the scope of certiorari review of
administrative factual findings. One is that appellate litigants are not entitled to
duplicative plenary review of factual findings as the appellate ladder is traversed.
Instead, litigants get one opportunity to make an evidentiary record and to persuade
the fact-finder to one of their competing views of the evidence; they cannot appeal
to a circuit court and obtain such detailed review again. In this regard, it is
noteworthy that the circuit court conducted—in large part—essentially the same
type of review done by the hearing officer (with several important limitations
discussed below). By comparing the video to the officer’s report, and making
judgments about whether they were sufficiently in lockstep with each other, the
circuit court repeated almost the exact same exercise that the hearing officer had
already performed in the hearing room. But circuit courts are not to do so; doing so
14
would impermissibly provide the “second bite at the apple” that first tier certiorari
review precludes.
A second policy point is one of deference to the administrative hearing
officer, who heard the live testimony, saw the video firsthand interactively with the
officer’s testimony, and is experienced on licensure suspension matters. The
supreme court made this point in Dusseau, reiterating that “the ‘competent
substantial evidence’ standard cannot be used by a reviewing court as a mechanism
for exerting covert control over the policy determinations and factual findings of
the local agency.” Dusseau, 794 So. 2d at 1275-76 (emphasis added). Instead, the
“standard requires the reviewing court to defer to the agency’s superior technical
expertise and special vantage point in such matters.” Id. at 1276 (emphasis added).
The two highlighted passages underscore that a primary principle of Dusseau is
first tier deference to (rather than “control over”) administrative factual findings
because of the hearing officer’s “special vantage point” in the process; Dusseau
cannot be dismissed as merely an “agency expertise” case.
For like reasons, important limitations undercut the circuit court’s re-review
of the evidentiary record. As just mentioned, the hearing officer heard firsthand
from the officer, who was questioned about and explained alleged inconsistencies
between the video and the report; the circuit court had no contextual explanation
upon which to rely other than the transcript of the officer’s testimony, which
15
concededly supports the hearing officer’s findings. Unlike the circuit court, the
hearing officer could evaluate the credibility of the officer and make a
determination, for example, that he was truthful in his explanation of what he saw,
and what his report said, regarding the vehicle’s driving pattern. 3 While the video
alone might appear as thin evidence for the stop, when viewed in conjunction with
the officer’s testimony, if believed, the evidence as a whole explains why the
officer was led to believe the vehicle’s driver might be impaired (impairment being
a multi-factored judgment call). For this reason, the circuit court’s belief that the
“hearing officer was in no better position to evaluate the probative value of [the
video] than is this Court” was mistaken; the hearing officer was in a far better
position to evaluate the overall evidence, the “special vantage point” emphasized
in Dusseau.
Another limitation is that the circuit court concluded that the video nullified
the officer’s testimony and the report in their entirety. This too was mistaken. By
concluding it “was unreasonable as a matter of law for the hearing officer to accept
Deputy Sanders report and testimony” in their entirety, the circuit court failed to
follow Dusseau, which requires culling through the record for whatever bits and
3
An example is that the circuit court erroneously relied upon a portion of the
report dealing with a lane change that the officer on his own accord had voluntarily
admitted was an error. The hearing officer—who actually heard the officer make
this correction—was in the superior position to pass judgment on this factual point;
indeed, it made no finding of fact on the lane change issue, it playing no role in the
hearing officer’s order.
16
pieces of evidence that support an administrative order’s factual findings. Here,
that meant separating out those portions of the officer’s testimony, his report and
the video itself that are supportive of the hearing officer’s findings, leaving
contrary or inconsistent evidence on the cutting room floor. Viewed in this light,
the video—consistent with relevant portions of the testimony and report—shows
the vehicle appeared to weave somewhat, slowed to 30 mph in a 45 mph zone, and
braked within an intersection for no apparent reason—all at 2:10 am. The officer
also testified that his initial observation of the vehicle’s driving pattern, from a
distance the video was unable to capture fully, caught his attention by appearing to
swerve and flash its taillights in an odd way. This evidence, which the circuit court
otherwise deemed competent and substantial, cannot be ignored simply because the
circuit court disagreed with portions of testimony and report that it deemed
conflicted with the video.
A final, but related, policy point is that circuit courts are required to put
aside their factual correctness meters, as difficult as that may be. As the supreme
court in Dusseau said, the issue to be decided “is not whether the agency’s decision
is the ‘best’ decision or the ‘right’ decision or even a ‘wise’ decision” under the
circumstances. Id. at 1276. It can be a difficult task to review a factually-close case
and yield to a deferential appellate standard of review, particularly where a video
exists that may paint a visually divergent picture from the report or memory of a
17
testifying official. Judges reviewing the video, along with the report and the
hearing transcript, are likely to make differing judgments; just as hearing officers
seeing the video, reading the report, and hearing the testimony of the actual officer
might come away with different conclusions in this case. The legal point is that in
factually-close cases, such as this one, the judicial thinking cap must be switched
from “What do I believe is true?” to “What evidence supports what the hearing
officer believes is true?”
Appellate second-guessing of the fact-finder’s judgment goes against the
legally-required deference that promotes judicial economy and finality, which are
lost if circuit courts can utilize videos as a means to negate all other record
evidence. As the United States Supreme Court has noted, the “[d]uplication of the
trial judge’s efforts in the court of appeals would very likely contribute only
negligibly to the accuracy of fact determination at a huge cost in diversion of
judicial resources.” Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 574-
75 (1985) (“[T]he parties to a case on appeal have already been forced to
concentrate their energies and resources on persuading the trial judge that their
account of the facts is the correct one; requiring them to persuade three more
judges at the appellate level is requiring too much.”).
Of course, instances may exist where video evidence can operate to
contradict all other evidence on a discrete factual point (versus an overall
18
assessment of the evidence). A video that unmistakably shows a vehicle running a
red light can nullify testimony and reports to the contrary. But the quality and
context of a video, like that in this case, may not capture or explain the finer
nuances that the human eye of a trained (though here relatively inexperienced)
DUI officer may perceive. Which explains why the officer said he picked up on
some unusual movement of the vehicle or its taillights at a distance (“a good ways
back at that point”) that the camera could not fully capture because the “video isn’t
always the best.” What the officer believed he saw, unless entirely inconsistent
with the video, is to be credited. The officer’s eyes were multi-tasking: watching
the road to safely operate the patrol car while intermittently observing the vehicle’s
driving pattern. He may have believed the vehicle hit the fog line at the time, but
upon review of the video the vehicle did not drift quite that far—but it drifted
nonetheless. These types of contextual inconsistencies between the video and the
officer’s testimony/report are lost by crediting the video to the exclusion of the
record as a whole.
Yet videos are increasingly becoming a part of the appellate record, raising
issues about the degree of deference to be given factual findings in different
contexts. Some commentators argue for less deference—and greater appellate
authority to rely on video evidence—where the interest at stake, such as a criminal
sentence of death or life imprisonment, hangs in the balance.
19
In most garden-variety appeals . . . deference by a reviewing court to
trial court determinations may be justified by policy values other than
necessity, such as finality and judicial economy. No technological
advance is likely to endanger traditional standards of review in that
context. In less than routine cases, however, such as when a
defendant’s life is at stake, videotaped records may provide some
opportunity for much-needed improvement in appellate oversight of
state court proceedings.
Robert C. Owen & Melissa Mather, Thawing Out the “Cold Record”: Some
Thoughts on How Videotaped Records May Affect Traditional Standards of
Deference on Direct and Collateral Review, 2 J. App. Prac. & Process 411, 433
(2000). Others pragmatically urge for incremental change, allowing broader
appellate reliance on videos establishing insular facts that need little contextual
explanation, but generally defaulting to existing standards of review because many
facts—such as a person’s mental state—require more complex initial assessments
of evidence.
Discrete questions of fact, often binary in nature, are usually simple
and rarely conflict with an explicit finding of the trial judge; they are
thus proper candidates for video review. Questions requiring
behavioral interpretation are marked by the interpretation of behavior
in the courtroom; the category includes credibility but extends also to
situations that similarly implicate the interests of deference, finality,
efficiency, and the superiority of actual courtroom presence. Such
complex questions should remain outside the purview of appellate
review. The video record may “speak for itself,” but it does not and
cannot speak for the visual input a judge observes and interprets that
falls outside the scope of the camera, nor does it filter events and
behavior through his or her experience and expertise. This
fundamental reasoning behind deference should form the backbone of
a theoretical framework for integrating the video record into
American jurisprudence.
20
Bernadette Mary Donovan, Deference in A Digital Age: The Video Record and
Appellate Review, 96 Va. L. Rev. 643, 676 (2010). We need not resolve the extent
to which an appellate court may point to video evidence in overturning a lower
tribunal’s factual findings. In the context of this case, we need only conclude that
the trial court applied the “wrong law” by not sifting through the record for
evidence supporting the administrative order’s factual findings.
C. Trimble is Inapplicable
Our review is not complete without consideration of this Court’s decision in
Trimble, which Mr. Wiggins says allowed the circuit court to reject entirely the
officer’s testimony and report. His theory is that the circuit court at worst
misapplied Trimble, a case he claims is “correct law” in the context of this case.
See Edenfield, 58 So. 3d at 906 (“[A] misapplication or an erroneous interpretation
of the correct law does not rise to the level of a violation of a clearly established
principle of law.”) (internal citations and quotations omitted).
The trial court, however, did not rely upon or even mention Trimble.
Instead, it anchored its legal ruling—that an appellate court is in the “exact same
position” as a hearing officer in reviewing “objective” evidence involving no
credibility determinations—on the Second District’s fifty-year-old decision in
Julian v. Julian, 188 So. 2d 896 (Fla. 2d DCA 1966). But the context and holding
of Julian are of no relevance here. Julian was a child custody case in which the trial
21
court was presented with only a paper record consisting of pleadings, transcripts,
and exhibits; no live witnesses testified and no video evidence was offered. In that
evidentiary context, the Second District said:
It is our view that, as the case comes here, there is no presumption, or
at best, only a slight presumption, in favor of the correctness of the
custody provision. Where a trial Judge bases his Final Decree upon
the written pleadings and transcribed testimony and exhibits, the
Appellate Court is in the same position in examining the record as is
the Trial Judge, and a presumption as to determination of evidentiary
matters in not as strong as when the Judge, as the trier of the facts,
personally hears the witnesses.
Id. at 898 (emphasis supplied). The italicized portions demonstrate how far afield
Julian is from this case. First, the hearing officer in Mr. Wiggins’s case did not
base her findings on an entirely paper record, as occurred in Julian; she heard live
testimony and was in a position to make credibility determinations; and no video
was involved in Julian. Second, the court in Julian abandoned the notion that an
appellate court is “in the same position” as the trial court in situations where that
court “personally hears the witnesses.” Whatever presumption of correctness
applied to trial courts’ rulings on paper-only records was deemed “not as strong”
when a trial court “personally hears the witnesses.” On its face, Julian simply has
no application here. It follows that the application of an irrelevant case, such as
Julian, is the application of the “wrong law”—not a misapplication of the correct
law.
22
Because the trial court applied the “wrong law” in making its ruling, no need
exists to delve further into the metaphysical question of what law it might have
applied. Dusseau, 794 So. 2d at 1276 (“As long as the record contains competent
substantial evidence to support the agency’s decision, the decision is presumed
lawful and the court’s job is ended.”). Nonetheless, we address Trimble to point
out that its context and narrow holding likewise make it an inapplicable precedent.
One year after Dusseau was decided, this Court in Trimble reviewed the
Department’s administrative suspension of Ms. Trimble’s Florida driver’s license
for refusing to submit to a sobriety test. 821 So. 2d at 1085. A formal
administrative hearing was held, her suspension was upheld, and she petitioned the
circuit court, which set aside the suspension. The circuit court found no competent
substantial evidence that Ms. Trimble was given an implied consent warning prior
to her refusal because the Department’s documents 4 “were hopelessly in conflict
and the discrepancies on the critical facts went unexplained.” Id. at 1086. As in
Julian, the contested factual issue was based solely on a paper-only record.
The Department sought second tier review, arguing the circuit court
reweighed the evidence. Id. at 1085. This Court affirmed, holding that the circuit
4
The Department submitted an affidavit stating that Trimble was arrested at 11:40
p.m. but inconsistently stating that a request and warning was given to Trimble at
12:45 a.m.; a printout from the Breathalyzer that reflected a refusal occurred at
12:47 a.m.; and an officer’s report said a warning was given at 12:50 a.m. 821 So.
2d at 1086.
23
court did not reweigh the evidence; instead, it applied well-established law on what
constitutes competent substantial evidence, stating the “hearing officer’s finding
that Trimble was given a consent warning before her refusal could have rested as
much on the flip of a coin as on the documentary evidence submitted.” Id. The
petition was denied on that limited basis.
If this case involved a wholly paper record, consisting of a handful of
documents that were “hopelessly” conflicting on a single discrete fact—with no
other evidence supportive of the hearing officer’s order—then Trimble could
apply. It does not, however. Unlike the paper-only coin-flipping conundrum in
Trimble, 5 the evidentiary profile in Mr. Wiggins’s case is entirely different—live
testimony of the arresting officer, an arrest/booking report, and the video—making
Trimble inapplicable. No commonality or parallelism exists. Like Julian, Trimble
falls in “wrong law” category.
What underlies much of the confusion is differentiating between a
misapplication of the “correct law” and the application of the “wrong law.” As two
commentators have noted, “in many cases only a Zen master could distinguish
between a misapplication of the law and an application of the wrong law,” making
5
See also Dep’t of High. Saf. & Motor Veh. v. Colling, 39 Fla. L. Weekly D1195
(Fla. 5th DCA June 6, 2014) (hearing officer’s decision between two documents
with inconsistent blood alcohol readings “amounted to nothing more than a ‘flip of
a coin’ under the most favorable interpretation of the record” rendering it an
“arbitrary choice of one document over another [that] does not meet the
substantial, competent evidence test.”) (citing Trimble).
24
the task much like telling identical twins apart. Chris W. Altenbernd & Jamie
Marcario, Certiorari Review of Nonfinal Orders: Does One Size Really Fit All?
Part I, Fla. B.J., Feb. 2012, at 23. In a universal sense, any case could be dubbed
the “correct law” so long as it has not been overturned. But to be considered
“correct law” for purposes of certiorari review, a precedent must be “relevant law”
in the sense that it directly pertains to some issue in the case at hand. If not, a
circuit court could simply apply an irrelevant case and thereby immunize its ruling
from review as a “misapplication” of a “correct law.” For this reason, the “correct
law” for purposes of second tier certiorari review must, at a minimum, at least have
a direct and relevant application to the issue at hand. Viewed in this way, even if
the trial court had cited to Trimble and attempted to apply it as a basis for its
ruling, doing so would not insulate its ruling from certiorari review as a
“misapplication of correct law.”
D. “Miscarriage of Justice”
Not applying the correct law must also result in a “miscarriage of justice” as
the supreme court has explained.
In granting writs of common-law certiorari, the district courts of
appeal should not be as concerned with the mere existence of legal
error as much as with the seriousness of the error. Since it is
impossible to list all possible legal errors serious enough to constitute
a departure from the essential requirements of law, the district courts
must be allowed a large degree of discretion so that they may judge
each case individually. The district courts should exercise this
25
discretion only when there has been a violation of a clearly
established principle of law resulting in a miscarriage of justice.
Combs v. State, 436 So. 2d 93, 95-96 (Fla. 1983). Expanding upon Combs, the
court noted that the standard of second tier certiorari “while narrow, also contains a
degree of flexibility and discretion. For example, a reviewing court is drawing new
lines and setting judicial policy as it individually determines those errors
sufficiently egregious or fundamental to merit the extra review and safeguard
provided by certiorari. This may not always be easy since the errors in question
must be viewed in the context of the individual case.” Haines City Cmty. Dev., 658
So. 2d at 530-31 (footnote omitted).
Based upon these principles, which require not only a “sufficiently egregious
error or fundamental” error but also a restrained exercise of judicial discretion, we
conclude that the context of this case warrants relief. Failing to apply the
applicable standard of certiorari review, while perhaps understandable in light of
the circuit court’s view of the primacy of the video, meets this standard. See Clay
County, 969 So. 2d at 1181. And although this case involves only Mr. Wiggins’s
suspension, the Department says that many similar cases currently exist; and if the
circuit court’s method of review is permitted, that the proverbial floodgates will
open by giving the green light to circuit courts to independently review and
second-guess the evidentiary weight to be placed on video evidence. Under these
26
circumstances, where no relief is otherwise available to the Department to curtail
this practice, the context of this case warrants relief.
III.
The circuit court did not comply with Dusseau, which sets out the clearly-
established manner in which first tier certiorari review is conducted in determining
whether competent substantial evidence exists in support of an administrative fact-
finding. In light of the circuit court’s order, which says the officer’s testimony and
arrest/booking report by themselves would support the hearing officer’s factual
findings, it might seem that a reversal is in order. But Dusseau says that a district
court should not independently review the record and pass upon whether
competent substantial evidence exists in support of a challenged administrative
order; that is for the circuit court to do. As such, we grant the petition, quash the
circuit court’s order, and remand with directions to apply the correct law. Because
the issue presented arises more frequently due to the ubiquity of video evidence,
we certify the following question of great public importance for possible review:
WHETHER A CIRCUIT COURT FAILS TO APPLY THE
CORRECT LAW BY REJECTING AS NON-CREDIBLE THE
ENTIRETY OF AN ARRESTING OFFICER’S TESTIMONY AND
REPORT CONCERNING A TRAFFIC STOP, UPON WHICH THE
HEARING OFFICER’S FACTUAL FINDINGS RELIED, BASED
SOLELY ON THE CIRCUIT COURT’S OWN INDEPENDENT
REVIEW AND ASSESSMENT OF EVENTS ON THE VIDEO OF
A TRAFFIC STOP?
PETITION GRANTED.
27
LEWIS, C.J., CONCURS. VAN NORTWICK, J., DISSENTS.
VAN NORTWICK, J., dissenting.
It is clear from this record that the circuit court’s order did not improperly
reweigh the record evidence but, rather, it ruled on the credibility of the evidence
in the record in determining whether the hearing officer relied on competent
substantial evidence. Thus, the circuit court did not apply the incorrect law. 6 As a
result, I would deny the petition and respectfully dissent. I concur in the certified
question.
Factual and Procedural Background
As described by the majority, Wiggins was arrested for DUI and refused the
arresting law enforcement officer’s request to submit to breath-alcohol testing.
After the placement of an administrative refusal suspension on Wiggins’ driver’s
license, Wiggins requested and was granted a formal administrative suspension
review hearing. At the hearing, Wiggins placed into evidence a DVD recording
which was viewed at the hearing and showed the entire period from when he was
first observed by Deputy Saunders through the arrest. At the conclusion of the
evidentiary portion of the review hearing, Wiggins’ counsel argued that both the
stop of the vehicle and the DUI arrest were unlawful. Based on the record
documents and the testimony offered in the review hearing, the hearing officer
6
There is no argument that the circuit court denied procedural due process.
28
made certain factual findings, and based on these factual findings, the hearing
officer determined that a preponderance of the record evidence supported an
affirmance of the administrative suspension pursuant to section 322.2615(8)(a),
Florida Statutes. Wiggins’ motions to invalidate the administrative suspension
were denied.
Wiggins then filed a petition for writ of certiorari in the circuit court of the
Fourth Judicial Circuit. In the petition, Wiggins argued, as he had at the
administrative review hearing, that the stop and arrest were unlawful and that there
was no competent substantial evidence to support the hearing officer’s findings
that the stop and arrest were lawful. The Department asserted, in response, that
there was competent substantial evidence in the record to support the hearing
officer’s findings as made in the order and that, pursuant to section 322.2615(13),
the circuit court was not permitted to conduct a de novo review of the issues from
the administrative hearing. The circuit court granted Wiggins’ petition and found
that the record failed to contain competent substantial evidence to support the
lawfulness of the stop. The circuit court explained its ruling, as follows:
According to the arrest and booking report “the vehicle
was drifting and weaving in its own lane traveling at 30
mph in a 45 mph zone, the passenger side tires crossed
over the fog line and nearly struck the raised curb before
swerving back into the lane.” The video clearly refutes
this evidence; in the video the vehicle does not drift and
weave within its own lane. Furthermore, the passenger
29
side tires do not cross over the fog line nor do they come
close to striking the raised curb.
The arrest and booking report further states “after coming
to the flashing yellow lights at the intersection of Long
Bag Road and Blanding Boulevard, the Petitioner braked
for no reason and then accelerate. (sic)” The Petitioner
did brake slightly when coming to the flashing yellow
lights and subsequent to passing the flashing yellow
lights slowly accelerated. The arrest and booking report
then describes the vehicle as “braking hard again and
swerved right as he entered the intersection with Everett
Avenue.” The Petitioner did slightly apply the brakes
momentarily. However Petitioner did not swerve to the
right and almost hit the curb as he was passing through
the intersection with Everett Avenue.
The arrest and booking report further describes the
driving pattern as “continued south on Blanding
Boulevard toward County Road 218 and drifted into the
turn lane. While making a wide left turn he had to
realign his truck as he straightened out.” This evidence is
refuted by the video that shows that the petitioner (sic)
did continue driving southbound on Blanding Boulevard.
However, the Petitioner deliberately switched lanes into
the left turn lane as opposed to drifting. The turn upon
leaving the intersection was normal and did not result in
the Petitioner having to straighten out the vehicle to
complete the turn.
Standing alone, the arrest and booking report and
testimony by Deputy Saunders would support the
findings of the hearing officer. However, this testimonial
evidence is flatly contradicted by the objective evidence
on the videotape. The images on the videotape are clear
and contain adequate lighting. The hearing officer was in
no better position to evaluate the probative value of this
objective evidence than is this court. Viewing the entire
record evidence, neither the testimony of Deputy
Saunders nor the arrest and booking report constitutes
30
competent substantial evidence on which the hearing
officer could rely. In De Groot v. Sheffield, 95 So. 2d
912, 916 (Fla. 1957), the court described competent
substantial evidence as that “sufficiently relevant and
material that a reasonable mind would accept it as
adequate to support the conclusion reached. To this
extent the ‘substantial’ evidence should also be
‘competent.’”
It was unreasonable as a matter of law for the hearing
officer to accept Deputy Saunders report and testimony
after this evidence was shown to be erroneous and flatly
contradicted by the objective images of the videotape.
Accordingly, the circuit court granted the petition for a writ of certiorari and
quashed the Department’s order. The Department seeks review of this order by
petition for writ of certiorari. As noted, I would deny the petition.
Standard of Review
In considering a petition for writ of certiorari on second-tier review of a
circuit court’s order reviewing an administrative order, the various standards of
review are a necessary starting point in the analysis. In certiorari proceedings
concerning an administrative action, the circuit court is required to apply a three-
pronged analysis and determine (1) whether procedural due process was accorded,
(2) whether the essential requirements of law have been observed, and (3) whether
the administrative findings and judgment are supported by competent substantial
evidence. Haines City Cmty Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995);
Educ. Dev. Ctr., Inc. v. City of W. Palm Beach Zoning Bd. of Appeals, 541 So. 2d
31
106, 108 (Fla. 1989). When exercising its certiorari review power, the circuit court
is not permitted to reweigh the evidence or substitute its judgment for that of the
agency. Educ. Dev. Ctr., 541 So. 2d at 108.
The standard of review applicable to the district court of appeal reviewing
the circuit court’s order is more restricted. While engaged in a so-called second-
tier review, the appellate court is limited to a two-pronged analysis determining (1)
whether the circuit court afforded procedural due process, and (2) whether the
circuit court applied the correct law. Heggs, 658 So. 2d at 530 (holding that the
administrative phrase “applied the correct law” is synonymous with the civil and
criminal phrase “observing the essential requirements of law” and, therefore, there
is “no justifiable reason for adopting different standards for district court review in
such cases”); Educ. Dev. Ctr., 541 So. 2d at 108; Dep’t of Highway Safety &
Motor Vehicles v. Edenfield, 58 So. 3d 904, 906 (Fla. 1st DCA 2011). Pursuant to
Florida Rule of Appellate Procedure 9.030(b)(2)(B), this second-tier review is
necessarily narrower than the circuit court’s review. Educ. Dev. Ctr., 541 So. 2d at
108. This court, unlike the circuit court, may not review the record to determine
whether the Department’s decision was supported by competent substantial
evidence, see Dusseau v. Metropolitan Dade County Board of County
Commissioners, 794 So. 2d 1270, 1274 (Fla. 2001), because second-tier certiorari
is not a means of granting a second appeal. Further, the district court cannot grant
32
certiorari relief simply because it disagrees with the outcome of the circuit court’s
decision. Nader v. Fla. Dep’t of Highway Safety & Motor Vehicles, 87 So. 3d
712, 726 (Fla. 2012). As will be seen from the discussion which follows, the
majority misunderstands this court’s responsibility in determining whether the
circuit court “applied the correct law.”
With respect to determining whether the circuit court applied the correct
law, the district court should grant second-tier certiorari relief “only when there has
been a violation of a clearly established principle of law resulting in a miscarriage
of justice.” Custer Med. Ctr. v. United Auto. Ins. Co., 62 So. 3d 1086, 1092 (Fla.
2010) (emphasis added). This court has emphasized the limited nature of this
review:
Clearly established law can be derived not only from case
law dealing with the same issue of law, but also from an
interpretation or application of a statute, a procedural
rule, or a constitution provision. When the established
law provides no controlling precedent, however,
certiorari relief cannot be granted because without such
controlling precedent, a district court cannot conclude
that a circuit court violated a clearly establish principle of
law. Further, a misapplication or an erroneous
interpretation of the correct law does not rise to the level
of a violation of a clearly established principle of law.
Dep’t of Highway Safety & Motor Vehicles v. Edenfield, 58 So. 3d at 906 (internal
citations and quotations omitted).
Application of the Correct Law
33
Relying on Dusseau, the Department argues and the majority agrees that the
circuit court did not apply the correct law because it reweighed the evidence and
substituted its judgment for that of the hearing officer’s. In Dusseau, the Florida
Supreme Court discussed the applicable case law which governs first- and second-
tier reviews. The Supreme Court differentiated between a “competent substantial
evidence” standard of proof, which is applied by the government agency in the first
instance, and a “competent substantial evidence” standard of review, which is
applied by the circuit court upon its first-tier review. 794 So. 2d at 1274. The
Dusseau court explained that, when the circuit court reweighs the evidence and
decides the merits of an agency order, the circuit court applies the wrong law
because it applies the competent substantial evidence standard of proof rather than
the competent substantial evidence standard of review. Id. at 1275 (citing Florida
Power & Light Co. v. City of Dania, 761 So. 2d 1089 (Fla. 2000)). The court
further explained in Dusseau that
[t]he sole issue before the court on first-tier certiorari
review is whether the agency’s decision is lawful. The
court’s task vis-à-vis the third prong of [City of Deerfield
Beach v. Vaillant, 419 So. 2d 624 (Fla. 1982)] is simple:
The court must review the record to assess the
evidentiary support for the agency’s decision. Evidence
contrary to the agency’s decision is outside the scope of
the inquiry at this point, for the reviewing court above all
cannot reweigh the “pros and cons” of conflicting
evidence. While contrary evidence may be relevant to
the wisdom of the decision, it is irrelevant to the
34
lawfulness of the decision.
Id. at 1276.
Dusseau did not put forth a new understanding of the competent substantial
evidence standard of review. That is, in describing first-tier review, the Dusseau
court does not require, as the majority states, that reviewing the record in support
of the findings of fact involves “culling through the record for whatever bits and
pieces of evidence that support an administrative order’s factual findings” while
“separating out those portions [of a matter of record] that are supportive of the
hearing officer’s findings, leaving contrary or inconsistent evidence on the cutting
room floor.” Majority op. at 16-17. Instead, an item of evidence can be rejected as
a whole by the circuit court on first-tier review because it is not legally competent
evidence, even though a sentence or phrase within that item might support a
finding of fact. Courts employing a competent substantial evidence standard of
review, as this court routinely does, are not obliged to disassemble or deconstruct
matters submitted into evidence. To so construe the competent substantial
evidence standard would essentially render it a meaningless standard, for certainly
there is almost always some passing phrase or minor reference in the record
evidence which could be seen as support for a finding of fact, even when an item
of evidence, when viewed in context as a whole, plainly does not support a finding
of fact.
35
For instance, Dusseau nowhere requires a circuit court on first-tier review to
find support for a finding of fact on a single sentence in a document when that
document as a whole plainly does not support the finding. To my mind, that is
what the majority is here insisting upon: that a circuit court accept parts of a
discrete item of record while ignoring that item as a whole. Indeed, the majority
says as much when it holds that the circuit court must have found support for a
finding of fact made by the hearing officer if “portions of the report, or portions of
the officer’s testimony, or portions of the video, or some combination of the three,
provided evidentiary support for the hearing officer’s findings. . . .” Majority op. at
14. Dusseau says no such thing. To mandate a Chinese menu approach to the
competent substantial evidence determination in first-tier review will lead to
absurd results. Therefore, in my view, the majority reads Dusseau too broadly.
It is certainly true that a reviewing court on first-tier review may not reweigh
the competent evidence already weighed by the finder of fact. Dusseau, 794 So. 2d
at 1273-74. However, as noted, a court on first-tier review is charged with
determining whether findings of fact and the resulting judgment are supported by
competent substantial evidence, which means the court of first-tier review is to
determine whether there is “legally sufficient evidence.” Id. at 1274 (citing Florida
Power & Light, 761 So. 2d at 1092).
36
I do not agree with the Department that, contrary to the requirements of
Dusseau, the circuit court here engaged in a reweighing of the record evidence. As
I read the circuit court’s order, the circuit court properly reviewed the record
evidence to determine whether the evidence on which the hearing officer relied
was sufficiently credible to constitute competent substantial evidence. As noted,
the trial court concluded that the arrest and booking report as well as the testimony
of Deputy Sanders “were flatly contradicted by objective evidence on the
videotape.” That is, the trial court concluded that the arrest and booking report,
as well as the trial testimony of the officer, were not sufficiently credible to
constitute competent substantial evidence.
In the seminal case of De Groot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957),
the term competent substantial evidence is defined:
Substantial evidence has been described as such
evidence as will establish a substantial basis of
fact from which the fact at issue can be
reasonably inferred. We have stated it to be such
relevant evidence as a reasonable mind would
accept as adequate to support a conclusion. In
employing the adjective “competent” to modify
the word “substantial,” we are aware of the
familiar rule that in administrative proceedings
the formalities in the introduction of testimony
common to the courts of justice are not strictly
employed. We are of the view, however, that the
evidence relied upon to sustain the ultimate
finding should be sufficiently relevant and
37
material that a reasonable mind would accept it as
adequate to support the conclusion reached. To
this extent the “substantial” evidence should also
be “competent.”
After the De Groot decision, the Florida Supreme Court further refined the
definition of competent substantial evidence by explaining:
Although the terms “substantial evidence” or
“competent substantial evidence” have been
variously defined, past judicial interpretation
indicates that an order which bases an essential
finding or conclusion solely on unreliable
evidence should be held insufficient.
Fla. Rate Conference v. Fla. R.R. & Pub. Utils. Comm’n, 108 So. 2d 601, 607 (Fla.
1959) (emphasis added). In short, evidence which is incredible or unreliable is not
competent substantial evidence.
A determination that evidence is not competent substantial evidence does
not involve a reweighing of the evidence. As the Florida Supreme Court explained
in Tibbs v. State, 397 So. 2d 1120, 1123 (Fla. 1981), the “weight and the
sufficiency of evidence are, in theory, two distinct concepts. . . .” As the Supreme
Court explained further, “[s]ufficiency is a test of adequacy. Sufficient evidence is
‘such evidence, in character, weight, or amount, as will legally justify the judicial
or official action demanded.’” Id. at 1123 (quoting Black's Law Dictionary 1285
(5th ed. 1979)). In Florida Power & Light, the Florida Supreme Court reiterated
38
that the consideration as to whether a finding is supported by competent substantial
evidence necessarily entails a consideration of whether evidence is “legally
sufficient.” 761 So. 2d at 1092; see Dusseau, 794 So. 2d at 1273-74. In contrast,
the “weight of the evidence” is the “balance or preponderance of evidence.” Tibbs,
397 So. 2d at 1123 (quoting Black's Law Dictionary 1429 (5th ed. 1979)). That is,
it is “a determination of the trier of fact that a greater amount of credible evidence
supports one side of an issue or cause than the other.” Id. (Emphasis added).
Here, the circuit court concluded that the “testimonial evidence” of the officer was
not credible, and thus, that testimonial evidence was properly rejected. The trial
court did not engage in a weighing of credible evidence against other credible
evidence. Accordingly, the trial court did not exceed its proper scope of first-tier
review.
This understanding of first-tier review was reaffirmed by this court in
Department of Highway Safety & Motor Vehicles v. Trimble, 821 So. 2d 1084
(Fla. 1st DCA 2002). 7 In Trimble, the circuit court set aside a driver’s license
suspension order based upon its determination that no competent substantial
evidence supported the hearing officer’s decision that Trimble had been given an
7
On appeal, the Department argues that Trimble conflicts with Dusseau and that
Trimble was wrongly decided. I disagree. As explained in the text, Trimble does
not conflict with Dusseau. Further, I do not agree that Trimble was wrongly
decided.
39
implied consent warning of her right to refuse a breath, urine or blood test before
she declined to take the test. Id. at 1085. On second-tier review, this court
concluded that the circuit court had not misapplied the law. We explained that
[i]n the case before us, the circuit court concluded that
the documentary evidence presented by the Department,
which was the only evidence submitted to prove its case,
was legally insufficient to constitute CSE on the
warning issue, because the documents were hopelessly in
conflict and the discrepancies on the critical facts went
unexplained.
Id. at 1086 (emphasis added). This court described the dispositive issue before it:
The question before us is whether the circuit court’s
ruling constitutes impermissible reweighing of
conflicting evidence, and thus is a misapplication of the
law, or whether it is a proper application of the law. The
resolution of this issue turns on the meaning and force
of the inference derived from the evidence submitted.
Id. (emphasis added). This court concluded in Trimble that the circuit court did
not engage in a reweighing of evidence, which it was not permitted to do, when it
rejected incredible evidence, which it was permitted to do. As we explained,
Florida courts have long required that findings must be based “on evidence in the
record that supports a reasonable foundation for the conclusion reached.” 821 So.
2d at 1087. Put another way, findings must be based on evidence “having fitness
to induce conviction.” Id. (quoting Fla. Rate Conference v. Fla. R.R. & Pub. Utils.
Comm’n, 108 So. 2d 601, 607 (Fla. 1959)).
40
The majority argues Trimble is not applicable as the evidence submitted in
that case consisted only of “paper,” whereas Deputy Wiggins gave live testimony
before the hearing officer. This distinction is of no consequence. The recognition
by this court in Trimble that the evidence relied upon by the hearing officer gave
equal support to inconsistent inferences had nothing to do with the documentary
character of the evidence. This court’s refusal in Trimble to grant certiorari relief
instead was solely dependent on the evidence being so inclusive as to amount to a
“flip of a coin,” 821 So. 2d at 1087, as the circuit court therein had properly
concluded.
In conclusion, while the majority asserts that the circuit court applied the
“wrong law,” I must disagree. The circuit court’s consideration of whether the
hearing officer relied on competent substantial evidence is an inquiry compelled by
Dusseau and Trimble. Accordingly, the circuit court applied the correct law in
determining whether the administrative findings and judgment were supported by
competent substantial evidence. See Haines City Cmty. Dev., 658 So. 2d at 530,
and Educ. Dev. Ctr., 541 So. 2d at 108. Even the majority recognizes that Dusseau
requires a circuit court, on first-tier review, to determine whether a hearing
officer’s finding is supported by “competent substantial evidence.” Majority op. at
7. That is all the circuit court did here. Respectfully, it seems to me that the
majority here simply disagrees with the circuit court that the testimony of and
41
report from Deputy Saunders were not competent evidence. That is not, however,
the issue before us on second-tier review.8 In fact, by rejecting the circuit court’s
conclusion that the hearing officer’s findings were not based on competent
substantial evidence, it is the majority which is applying the incorrect law.
Accordingly, I would deny the petition for writ of certiorari.
8
As noted, this court, unlike the circuit court, may not review the record on
second-tier review to determine whether the Department’s decision was supported
by competent substantial evidence. Dusseau, 794 So. 2d at 1274 (Fla. 2001).
Further, this court cannot grant second-tier certiorari review simply “because it
disagrees with the outcome of the circuit court’s decision.” Nader, 87 So. 3d at
726.
42