STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, DIVISION OF Real ) ESTATE, )

)

Petitioner, )

)

v. ) CASE NO. 85-0536

)

LARRY C. ABRAMSON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in the above case before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on July 18, 1985 in Fort Lauderdale. Florida.

APPEARANCES

For Petitioner: Susan J. Hartmann, Esquire

Post Office Box 1900 Orlando, Florida 32802

For Respondent: C. Edward McGee, Jr., Esquire

790 East Broward Boulevard Suite 302

Fort Lauderdale, Florida 33301 BACKGROUND

By administrative complaint filed on December 17, 1984,petitioner, Department of Professional Regulation, Division of Real Estate, has charged that respondent, Larry C. Abramson, licensed as a real estate salesman by petitioner, had violated Subsection 475.25(1)(f), Florida Statutes, for which disciplinary action against his license should be taken.

Generally, petitioner has alleged that respondent entered into a plea of guilty to a one-count information charging a conspiracy to commit securities fraud and mail fraud arising from an

insider trading scheme in violation of Title 18, United States Code, Section 371. Petitioner further alleges that by virtue of the foregoing conduct respondent "has been convicted or found guilty of a crime in violation of Subsection 475.25(1)(f), Florida Statutes."

Respondent disputed the above allegations and requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes. The matter was referred to the Division of Administrative Hearings by petitioner on February 12, 1935, with a request that a Hearing Officer be assigned to conduct a formal hearing. By notice of hearing dated March 26, 1985, the final hearing was scheduled for July 18, 1985 in Fort Lauderdale, Florida.

At final hearing petitioner offered petitioner's exhibits 1-4. All were received in evidence.

At the conclusion of petitioner's case, respondent made an ore tenus motion for directed judgment on the grounds petitioner had failed to show that respondent was convicted of any crime as required by Subsection 475.25(1)(f). A ruling on the motion was reserved.

The transcript of hearing was filed on July 29, 1985.

Proposed findings of fact and conclusions of law were filed by petitioner on August 5, 1985. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order, except where such proposed findings of fact have been rejected as subordinate, cumulative, immaterial or unnecessary.

At issue herein is whether respondent's real estate salesman license should be disciplined for the alleged violation set forth in the administrative complaint.

FINDINGS OF FACT

1. At all times relevant hereto, respondent, Larry C. Abramson, held real estate salesman license number 00400601 issued by petitioner, Department of Professional Regulation, Division of Real Estate. He currently resides at 830 Southeast Fifth Terrace, Pompano Beach, Florida.

   
   

2. On or about July 19, 1984, respondent entered into a negotiated plea of guilty to a one-count information charging a conspiracy to commit securities fraud and mail fraud arising

   from an insider trading scheme in violation of Title 18, United States Code, Section 371. A violation of the foregoing section carries a maximum sentence of five years and a $10,000 fine.

   When the violation herein occurred, Abramson was employed as a plant superintendent and manufacturing supervisory staff member for a New York financial printing concern.

   
   

3. Documentation received in evidence concerning the charge are (a) a letter of June 15, 1984 executed by respondent and the prosecuting attorney outlining the nature of the plea and Abramson's requirement to fully cooperate with the government, (b) a news release issued by the United States Attorney outlining the guilty plea, (c) a certified copy of Abramson's docket sheet in the U. S. District Court in New York City, (d) a copy of the information filed against respondent, and (e) a certified copy of respondent's waiver of indictment and consent to information. However, respondent has not yet been sentenced by the court, and there is no evidence of record that the plea of guilty has been accepted by the court.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.

   
   

5. Subsection 475.25(1)(f), Florida Statutes, authorizes disciplinary action against a licensee if the licensee:

   
   

   (f) Has been convicted or found guilty, regardless of adjudication, of a crime in any jurisdiction which directly relates to the activities of a licensed . . . salesman or involves moral turpitude or fraudulent or dishonest dealing. Any plea of nolo contendere shall be considered a conviction for purposes of this paragraph. The record of a conviction certified or authenticated in such form as to be admissible in evidence under the laws of the state shall be admissible as prima facie evidence of such guilt.

   
   

6. Respondent is charged with having been convicted or found guilty of a crime in violation of the foregoing statute. There is no apparent dispute by Abramson that the alleged crime

   is one involving "moral turpitude or fraudulent or dishonest dealing."

   
   

7. At issue is whether a plea of guilty by a defendant, with no record foundation to show that such plea was accepted by the Court, is sufficient to establish a conviction or being found guilty of a crime within the meaning of the law.

   
   

8. In support of its position, Petitioner relies primarily upon Boykin v. A1abama, 395 U. S. 238 (1969), in contending that a plea of guil-y is in itself a conviction. It also relies upon McRae v. State, 395 So. 2d 1145 (Fla. 1981), for the proposition that "once a plea of guilty has been accepted by a court, it is the conviction." Abramson has not directly responded to this authority, but points instead to Fla.R.Cr.P. 3.170(j) which requires, that before a plea of guilty can be accepted, the court must determine that the circumstances surrounding the plea reflect a full understanding of the significance of the plea and its voluntariness, and that there is a factual basis for the plea of guilty. The court is also required to keep a complete record of such proceedings. Respondent reasons that the same requirement exists in federal criminal proceedings (presumably Federal Rule 113, and that because no record of any such proceeding was submitted in petitioner's case-in-chief, there is no evidence that the plea of guilty has ever been accepted. Without the acceptance by the court of such a plea, Abramson argues that no conviction as yet been shown.

   
   

9. In state criminal proceedings, a plea of guilty can be withdrawn at any time by a defendant prior to the court accepting his plea. See, Fla.R.Cr.P. 3.172(f).1 The applicable federal rule [Rule 32(d)] offers a defendant the same choice. Therefore, it follows that until the plea is formally accepted, there is no assurance that a defendant will not withdraw his plea, or that the plea will be accepted by the court after proper inquiry. Failing this, there can be no conviction or being found guilty of a crime. In order to show that a plea has been accepted, at least two ways are available to the agency. First, it may simply introduce a certified copy of the judgment of conviction which is prima facie evidence of a crime having been convicted. Subsection 475.25(1)(f), Florida Statutes. Secondly, it may opt to introduce the record of the proceeding itself in which the Court has made the necessary inquiry under Fla.R.Cr.P. 1.370(j) or Federal Rule 11 in order to accept the plea of the defendant. In this case, neither has been done. Therefore, petitioner has failed to establish by an adequate record foundation that a "conviction" has occurred. While this

   conclusion may seem at first blush to be at odds with the language in Williams v. State, 316 So. 2d 267 (Fla. 1975) ("A plea of guilty is both a confession and a conviction"), and Boykin v. Alabama, 395 v. s. 238, 89 S. Ct. 1709, 23 L.Ed.2d 274 (1969), ("A plea of guilty is more than a confession which admits that the accused did various acts: it is itself a conviction"), those cases merely recognize the well-accepted principle that once a plea of guilty has been accepted by the court, "it is the conviction and the only remaining step is the entry of judgment and the imposition of sentence." McCrae v.

   State, 395 So. 2d 1145, 1154 (Fla. 1981). Here the essential element of acceptance of Abramson's plea of guilt has not been shown. This being so, it is concluded that the record does not establish that respondent "has been convicted or found guilty .

   . . of a crime," and the complaint should accordingly be dismissed.

   
   

10. In view of the above conclusion, respondent's motion for directed judgment is rendered moot and is hereby denied.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the administrative complaint be DISMISSED with prejudice.

DONE and ORDERED this 28th day of August, 1985, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, FL 32301

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 1985.

ENDNOTE

1/That rule provides that "(n)o plea. . . is binding until it is accepted by the trial judge formally after making all inquiries, advisements and determinations required by this Rule. Until that time, it may be withdrawn by either party without any necessary justification. (Emphasis added)

COPIES FURNISHED:

Susan J. Hartmann, Esq.

P. O. Box 1900 Orlando, FL 32802

C. Edward McGee, Jr., Esq.

890 E. Broward Blvd., Suite 302 Fort Lauderdale, FL 33301

Docket for Case No: 85-000536

Orders for Case No: 85-000536