STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 78-2067

)

ERNEST B. BROWN, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on April 9, 1980, in St. Petersburg, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case was presented on an Administrative Complaint filed by the Florida Real Estate Commission against Ernest Brown alleging that Brown was confined in a state or federal prison contrary to Section 475.25(2), Florida Statutes (1977), now Section 475.25(m), Florida Statutes (1979).

APPEARANCES

For Petitioner: Frederick H. Wilsen, Esquire

Department of Professional 2009 Apalachee Parkway

Tallahassee, Florida 32301

For Respondent: Did not appear and was not represented STATEMENT OF THE ISSUE

The facts presented show that Brown was placed upon probation without adjudication and required to spend 180 days in the Pinellas County Jail to be served on weekends. The issue is whether a probationary confinement in a county jail on weekends constitutes a violation of Section 475.25(2), Florida Statutes (1977).

FINDINGS OF FACT

1. Ernest Brown is a registered real estate salesman holding a registration issued by the Florida Real Estate Commission. Brown received notice of the instant hearing as required by the statutes and rules. His probation officer testified she had contacted him and he had advised her that he would not attend the proceedings.

   
   

2. Brown was placed on probation with an adjudication of guilt withheld by the Circuit Court of Pinellas County, Florida, on January 25, 1989 (see Exhibit 2). Paragraph 10 of the conditions of probation requires that Brown serve 180 days in the Pinellas County Jail on weekends from 7:00 p.m. Friday until 7:00

   p.m. Sunday. Because of the appeal of his case, Brown did not begin serving this jail term until August 24, 1989. He has served 72 of the 180 days

   according to the records of his probation officer. Brown is currently in the custody of the State's probation department.

   
   

   CONCLUSIONS OF LAW

   
   

3. The only issue presented in this case is whether Brown's confinement in the Pinellas County Jail is confinement in any state prison? The burden lies on the Board to prove its case. The sole evidence in support of the allegation is a certified order withholding adjudication and placing Brown on probation for five years under the supervision of the Department of Offender Rehabilitation. One of the terms of probation in that order is that Brown serve 180 days on weekends in the Pinellas County Jail. Evidence was presented that Brown is serving the weekends in jail and has served 72 of the 180 days.

   
   

4. Section 944.08, Florida Statutes (1977), makes it very clear that all places of confinement are not state prisons and statutory reference to a state prison as a place of confinement does not refer to a physical prison but to commitment into the custody of the Department of Offender Rehabilitation.

   "State Prison" in the statute is not a reference to any place of confinement but a term of art referring to commitment of an individual into the custody of the Department of Offender Rehabilitation.

   
   

5. Commitment to the custody of the Department is also a term of art with a specific statutory definition. Section 944.16, Florida Statutes (1977), provides that all prisoners shall be delivered into the custody of the Department at classification and reception centers. No prisoner shall be received by the Department unless the Sheriff, U.S. Marshal or other officers in charge of the prisoner shall also deliver a commitment in due form issued by authority of the court committing such prisoner. Section 944.17, Florida Statutes (1977), provides that the Department will design and supply uniform commitment forms to clerks of the courts for use by the clerks in issuing commitments to the Department of all persons who may be convicted and sentenced in their courts. No prisoner shall be received into the custody of the Department by other commitment forms.

   
   

6. To show that a person is confined in a state prison through the documentary record, it would be necessary to show the individual was committed to the custody of the Department of Offender Rehabilitation. To show that the person was committed, the commitment order would have to be introduced because it is the only document upon which a prisoner may be legally accepted into the Department's custody. The statute indicates that such an order of commitment is applicable to persons convicted and sentenced.

   
   

7. The documentary evidence introduced in this case is the Order Withholding Adjudication of Guilt and Placing Defendant on Probation. It reflects that there is no sentence imposed on Brown who was placed under the supervision of the Department and not in its custody. Although Brown is clearly confined on weekends in Pinellas County Jail, his status as a prisoner in a state prison is not established by the documents introduced by the Board.

   
   

8. In conclusion, the provisions of Section 475.25(2), Florida Statutes (1977), are penal in nature and as such, they must be strictly construed and narrowly applied. The provisions of Section 449.08, Florida Statutes, clearly limit the term "state prison" to persons in the custody of the Department of Offender Rehabilitation. The Board did not establish Brown was in the custody of the Department of Offender Rehabilitation. Custody occurs only upon commitment and commitment occurs only through use of a uniform commitment form.

   The Board of Real Estate has failed to prove commitment and custody and, thereby, failed to prove Brown was confined in a state prison.

   
   

9. The allegations against Brown are limited to violation of Sections 475.25(2), Florida Statutes (1977), now 475.25(1)(m), Florida Statutes (1979), by being confined in any state prison. The allegations are not proven.

RECOMMENDATION

The Board's counsel advised the Hearing Officer after hearing that Respondent had surrender his license. This constitutes an ex parte communication of which notice is hereby given to all parties. This fact is immaterial to consideration of the matter at hand. The Board has long taken the position, quite correctly, that surrendering of a license did not impair jurisdiction to consider violations of its statutes by a licensee while licensed. Similarly, surrender of a license cannot terminate the Hearing Officer's consideration of the matter after hearing. The instant case was duly heard and the Recommended Order prepared prior to receipt of any pleadings relative to surrender by Brown of his license. At this point, the Board may accept surrender of the license and dismiss the Administrative Complaint, in which case Brown would be considered not to have had any disciplinary action against him, or the Board may enter its final order based upon the record and this Recommended Order.

Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that no action be taken against the license of Ernest Brown.

DONE and ORDERED this 23rd day of April, 1980, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Frederick H. Wilson, Esquire Department of Professional Regulation 2009 Apalachee Parkway

Tallahassee, Florida 32301

Mr. Ernest B. Brown

2027 Thirteenth Street, South St. Petersburg, Florida 33172

Docket for Case No: 78-002067

Orders for Case No: 78-002067