STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GARY M. PICCIRILLO, DOUGLAS L. ) ADAMS and GEORGE CHAIN, )

)

Petitioners, )

)

vs. ) CASE NO. 83-872RX

)

DEPARTMENT OF CORRECTION, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a public hearing in this cause on May 11, 1983, at Union Correctional Institution, Raiford, Florida.

APPEARANCES

For Petitioners: Gary M. Piccirillo,

Douglas L. Adams and George Crain, pro se

Union Correctional Institution Post Office Box 221

Raiford, Florida 32083

For Respondent: Arthur C. Wallberg, Esquire

Assistant Attorney General Department of Legal Affairs Suite 1601, The Capitol Tallahassee, Florida 32301

By petition filed with the Division of Administrative Hearings on March 23, 1983, Petitioners challenged the validity of the Department of corrections' Rule 33-9, Florida Administrative Code, and Department of Corrections' Policy and procedure Directive No. 4.07.40, pursuant to the provisions of Section 120.56, Florida Statutes. Final hearing in this cause was initially scheduled for April 18, 1983, but by agreement of the parties was rescheduled for May 11, 1983.

At the final hearing, Respondent moved to dismiss the petition, asserting that Petitioners lacked standing to maintain this proceeding pursuant to the requirements of Section 120.56, Florida Statutes. By agreement of the parties, testimony was taken in order to properly dispose of this motion. In this regard, Respondent called George Crain, T.J. Cunningham, and Greg Arline as its witnesses. Respondent offered no exhibits for inclusion in the record. Each of the Petitioners testified in his own behalf, and Petitioners offered Petitioners' Exhibit No. 1, which was received into evidence.

FINDINGS OF FACT

1. Petitioners Gary M. Piccirillo ("Piccirillo"), Douglas L. Adams ("Adams"), and George Crain ("Crain") each are inmates who are presently incarcerated and within the custody of Respondent, Department of Corrections. At the time of final hearing in this cause, each of the Petitioners was incarcerated in Union Correctional Institution, Raiford, Florida.

   
   

2. At the time of final hearing in this cause, both Petitioner Adams and Petitioner Crain had been classified as "close custody" in accordance with the provisions of Rule 33-6.09(4), Florida Administrative Code. Petitioner Piccirillo had been classified as "medium custody" in accordance with that same rule. The custody status of each of these inmates had been reviewed and established within the last six months prior to final hearing.

   
   

3. In addition to challenging the validity of Rule 33-9.07(4), Florida Administrative Code, Petitioners also challenge the validity of Department of Corrections' Policy and Procedure Directive No. 4.07.40 issued April 27, 1977, and revised March 10, 1982, as an unpromulgated rule. Specifically, Petitioners contend that Section IXB conflicts with certain provisions of Section 945.091, Florida Statutes, and is, therefore, invalid. Specifically the Policy and Procedure Directive in the above referenced section provides that:

   
   

   The department will permit considera- tion for work release 18 months prior to release. However, normally such consideration will be given within the last nine months prior to the presumptive parole release date or expiration or [sic]. . . .

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding. Section 120.56, Florida Statutes.

   
   

5. Section 945.091, Florida Statutes, provides, in pertinent part, that:

   
   

   1. The department is authorized

      to adopt regulations permitting the extension of the limits of the place of confinement of an inmate as to whom there is reasonable cause to believe he will honor his trust, by authorizing him, under prescribed conditions, and following investiga- tion and approval by the secretary, who shall maintain a written record of such action, to leave the confines of that place unaccompanied by a

      custodial agent for a prescribed period of time to:

      
      

      (b) Work at paid employment, participate in an education or a training program, or voluntarily serve a public

      or nonprofit agency in the community, while continuing as an inmate of the institution or facility in which he shall be confined, except during the

      hours of employment, education, training,

      or service and traveling thereto or there from. Inmates shall participate in paid employment only during the last 18 months of their confinement, unless sooner requested by the parole and probation Commission. (Emphasis added.)

      
      

6. Rule 33-9.07(A), Florida Administrative Code, challenged herein by Petitioners, provides as follows:

   
   

   The Department may recommend to the Florida Parole and Probation

   Commission that an inmate be placed on pre-parole work release prior

   to the last twelve months of his sentence . . . .

   
   

7. Petitioners contend that Rule 33-9.07(4), Florida Administrative Code, together with Policy and Procedure Directive 4.07.40, impermissibly restricts the 18-month requirement contained in Section 945.091(1)(b), Florida Statutes, quoted above, and are, therefore, invalid. However, another provision of Rule 33-9.07, Florida Administrative Code, provides that inmates may be eligible for consideration for pre-parole work release only if they have not been rendered ineligible under the provisions of Respondent's Rule 33-9.06, Florida Administrative Code. In pertinent part, that rule provides that " [n]o

inmate shall be eligible for participation in the community release or furlough programs unless he is classified as minimum custody. . ." As indicated in the Findings of Fact sections of this Order, none of the Petitioners in this cause are classified as "minimum custody," and are, therefore, ineligible for participation in the community release or furlough programs. Accordingly, based upon the rationale in Florida Department of Offender Rehabilitation v. Jerry,

353 So.2d 1230 (Fla. 1 DCA 1978), the Petitioners in this cause have failed to show that they have incurred any injury accompanied by any continuing present adverse effect and, accordingly, lack standing to participate as a party in this proceeding.

Accordingly, the relief sought by Petitioners should be, and the same is hereby, DENIED, and this proceeding dismissed.

DONE AND ORDERED this 15th day of August, 1983, at Tallahassee, Florida.

WILLIAM E. WILLIAMS

Hearing Officer

Division of Administrative Hearings Department of Administration

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 15th day of August, 1983.

COPIES FURNISHED:

Arthur C. Wallberg, Esquire Assistant Attorney General Department of Legal Affairs The Capitol, Suite 1601 Tallahassee, Florida 32301

Liz Cloud, Chief

Bureau of Administrative Code Department of State

The Capitol

Tallahassee, Florida 32301

Gary M. Piccirillo

Union Correctional Institution Post Office Box 221

Raiford, Florida 32083

Carroll Webb, Executive Director Joint Administrative

Procedures Committee

120 Holland Building Tallahassee, Florida 32301

Douglas L. Adams

Union Correctional Institution Post Office Box 221

Raiford, Florida 32301

George Crain

Union Correctional Institution Post Office Box 221

Raiford, Florida 32083

Louie L. Wainwright, Secretary Department of Corrections 1311 Winewood Boulevard

Tallahassee, Florida 32301

Michael J. Minerva, Esquire General Counsel

Department of Corrections 1311 Winewood Boulevard

Tallahassee, Florida 32301

Ms. Mary Danson

Institution Investigator's Office Union Correctional Institution Post Office Box 221

Raiford, Florida 32083

Docket for Case No: 83-000872RX

Orders for Case No: 83-000872RX