STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF LAW ENFORCEMENT, ) CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2757

)

NATHANIEL FREDERICK, JR., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William B. Thomas, held a formal hearing in this case on March 4, 1983, in Jacksonville, Florida.

APPEARANCES

For Petitioner: Susan Tully, Esquire

Assistant Attorney General The Capitol, Suite 1601 Tallahassee, Florida 32301

For Respondent: Lacy Mahon, Jr., Esquire

350 East Adams Street Jacksonville, Florida 32202

By Amended Administrative Complaint filed December 2, 1982, the Florida Criminal Justice Standards and Training Commission seeks to revoke the law enforcement certification of the Respondent, Nathaniel Frederick, Jr. As grounds therefor, the Amended Complaint alleges that the Respondent, on March 5, 1983, plead nolo contendere to a felony, specifically, aggravated assault.

Neither the Petitioner nor the Respondent presented any witnesses; the Petitioner offered two exhibits which were received in evidence.

Subsequent to the hearing, the parties submitted proposed findings of fact and conclusions of law, and these have been considered. Where not adopted they were found to be irrelevant or immaterial, or not in accord with the law.

FINDINGS OF FACT

1. The Respondent holds law enforcement certificate number 4519, issued February 3, 1972.

   
   

2. On March 5, 1981, in the Circuit Court of Duval County, Florida, the Respondent plead nolo contendere to the charge of aggravated assault.

3. Pursuant to Section 784.021(2), Florida Statutes, aggravated assault is a felony.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

   
   

5. Section 943.13, Florida Statutes (1981), establishes guidelines for law enforcement and correctional officers. Section 943.13(4), Florida Statutes, provides:

   
   

   After August 1, 1974, any person employed or appointed as a law enforcement officer, and, after July 1, 1981, any person employed or appointed as a correctional officer, shall:

   (4) Not have been convicted of a felony or a misdemeanor involving "moral turpitude"

   as the term is defined by law....For the pur- poses of this section and s.943.145, any person who, after July 1, 1981, pleads guilty or nolo contendere to or is found guilty of a felony or of a misdemeanor involving moral turpitude shall not be eligible for employ- ment as a law enforcement officer, notwith- standing suspension of sentence or with- holding of adjudication.

   
   

6. The statutory provision barring persons having been convicted of a felony or misdemeanor involving moral turpitude from employment as a law enforcement officer has long been in effect. It was originally established in 1967 by Section 8, Chapter 67-230, Laws of Florida, which provided:

   
   

   Section 8. Police Officers, qualifications for employment.

   
   

   After the effective date of this act any person employed as a police officer shall:

   (4) Not have been convicted of a felony or of a misdemeanor involving "moral

   turpitude" as the term is defined by law....

   
   

7. Subsection 4 of Section 8, Chapter 67-230, Laws of Florida, took effect as Section 23.068(4), Florida Statutes (1967)

   
   

8. Pursuant to Section 7 of Chapter 74-386, Laws of Florida, Section 23.068(4) was renumbered as Section 943.13(4), Florida Statutes.

   
   

9. Section 943.13(4), Florida Statutes (Supp. 1974), remained in effect, and was amended in 1980 by Section 5, Chapter 80-71, Laws of Florida, to provide in pertinent part:

   
   

   (4). . . For purposes of this section and

   s. 943.145, any person who, after October 1, 1980, pleads guilty or nolo contendere or

   is found guilty of a felony or of a mis-

   demeanor involving moral turpitude shall not be eligible for employment as a law enforcement officer, notwithstanding suspension of sentence or withholding of adjudication. (Emphasis supplied)

   
   

   This language of Section 5, Chapter 80-71, Laws of Florida, was added to Section 943.13(4), Florida Statutes (Supp. 1980).

   
   

10. Because the Respondent's plea of nolo contendere to a felony was made subsequent to October 1, 1980, the Respondent is not eligible for employment as a law enforcement officer under Section 943.13(4), Florida Statutes (Supp. 1980). The fact that Section 943.13(4), Florida Statutes (1981), employs the date of July 1, 1981, rather than October 1, 1980, does not render the Respondent eligible because the October 1, 1980, date was in effect when the Respondent entered his plea.

    
    

11. This reading of the provision is in accord with the rule of statutory construction which requires that where an act states a time in the future when it shall take effect, it has force and effect only from that date. Pinellas County Planning Council v. Smith, 360 So.2d 371 (Fla. 1978). Thus, a plea of guilty or nolo contendere made after October 1, 1980, would render a law enforcement officer ineligible for further employment. The Respondent's plea was entered in March of 1981, a time subsequent to the effective date of October 1, 1980, and he may not be employed as a law enforcement officer.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that law enforcement certificate number 4519 held by the

Respondent, Nathaniel Frederick, Jr., be revoked.

DONE and RECOMMENDED this 18th day of April, 1983, in Tallahassee, Florida.

WILLIAM B. THOMAS

Hearing Officer

Division of Administrative Hearings 2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 18th day of April, 1983.

COPIES FURNISHED:

Susan Tully, Esquire Assistant Attorney General Suite 1601 - The Capitol Tallahassee, Florida 32301

Lacy Mahon, Jr., Esquire

350 East Adams Street Jacksonville, Florida 32202

G. Patrick Gallagher, Director Criminal Justice Standards Post Office Box 1489 Tallahassee, Florida 32302

Robert Dempsey, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Docket for Case No: 81-002757

Orders for Case No: 81-002757