STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS )

AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 88-4789

)

WILLIAM M. FLOYD, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Tampa, Florida on December 21, 1988 before Arnold H. Pollock, Hearing Officer. The issue for consideration is whether Respondent's certificate as a corrections officer should be disciplined because of his plea of nolo contendere to a charge of grand theft.

APPEARANCES

Petitioner: Joseph S. White, Esquire

Asst. General Counsel Post Office Box 1489

Tallahassee, Florida 32302

Respondent: William M. Floyd, pro se

Post Office Box 1084 Gibsonton, Florida 33534

BACKGROUND INFORMATION

On March 31, 1988, Rod Caswell, Director, Division of Criminal Justice Standards and Training, signed an Administrative Complaint in this case seeking to discipline Respondent's certificate as a corrections officer in Florida because of his plea of nolo contendere to a felony in Hillsborough County Circuit Court. Thereafter, Respondent requested a formal hearing. The matter was referred to the Division of Administrative Hearings for appointment of a Hearing Officer on September 27, 1988, and on October 13, 1988, the undersigned set the matter for hearing on December 21, 1988 at which time it was held as scheduled.

At the hearing, Petitioner presented the testimony of Harry J. Kendrick, manager of the revocation program for Petitioner, Criminal Justice Standards and Training Commission, (Commission), and introduced Petitioner's Exhibit 1.

Respondent testified in his own behalf but offered no exhibits.

No transcript of the proceedings was furnished. Petitioner submitted Proposed Findings of Fact which are accepted and incorporated herein.

FINDINGS OF FACT

1. At all times pertinent to the allegations concerned herein, Respondent, William M. Floyd has been certified as a corrections officer in Florida under certificate number C- 7585, dated May 23, 1980. He had been certified prior to that time under another Commission procedure.

   
   

2. The Commission is the state agency responsible for certifying law enforcement and corrections officers in Florida.

   
   

3. Throughout the majority of the year 1986, Respondent was employed as a corrections officer at the Department of Corrections' Tampa Corrections Work Release Center. When he was arrested for grand theft during 1986, he advised his boss that he intended to plead not guilty. Because of his prior eight years of good work and based on his representations, he was not discharged and was allowed to keep his employment.

   
   

4. Approximately six months later, Respondent was hospitalized for what his doctors thought was cancer of the spine. While he was in the hospital, his attorneys convinced him that due to his poor health, it would be to his advantage to plead nolo contendere and avoid the stress of a trial and thereafter negotiated an arrangement with the state attorney that in exchange for the plea of nolo contendere, adjudication of guilt would be withheld and Respondent would be placed on two years probation.

   
   

5. Respondent entered that plea in open court on November 10, 1986 in the Circuit Court of Hillsborough County and was placed on two years probation. He was promised that at the successful completion of his term of probation, his record would be sealed from the public but not from law enforcement officials. Respondent is looking forward to that happening.

   
   

6. After his court appearance, Respondent resigned from his position as a corrections officer with the Department of Corrections, he claims, due to his poor health. On December 4, 1986, the Department of Corrections advised the Petitioner, Commission, however, that Respondent had resigned his position due to the fact that he was placed on two years probation for grand theft. The documentation in question was not presented at the hearing, however, but the basis for Respondent's resignation is irrelevant. The seminal issue here is Respondent's plea of nolo contendere to a felony and of that there is no question.

   
   

7. Respondent is not now employed as a corrections officer or in any law enforcement capacity. As a result, he does not need his certification. However, because of the nature of the charges against him, and what he believes is a lack of culpability on his part, (not further explained); and because he may some day again want to work as a corrections officer, he wants to keep his certification.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.57(1), Florida Statutes.

9. Section 943.13(4), Florida Statutes, provides in pari materia: Any person who, after July 1, 1981,

   pleads guilty or nolo contendere to or is

   found guilty of any felony or ... is not eligible for employment or appointment as an officer, notwithstanding suspension of sentence or withholding of adjudication.

   
   

10. Grand theft is defined as a felony in the second degree under the provisions of Section 812.014(2)(b), Florida Statutes. There is no doubt that Respondent plead nolo contendere to a felony and, regardless of the fact he now disclaims culpability and asserts his plea was the result of poor advice from his attorney, is ineligible for employment or appointment as an officer. The statute makes no provision for consideration of any but the ultimate fact of plea. He is not, therefore, in compliance with the provisions of section 943.13(4).

    
    

11. Under the provisions of Section 943.1395(5), Florida Statutes,:

The commission shall revoke the certification of any officer who is not in compliance with the provisions of s. 943.13(1) - (10). . .

Since Respondent is not in compliance with the cited provisions of the statute, the commission has no choice but to revoke his certification.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED that the certification of Respondent, WILLIAM M. FLOYD, as a corrections officer be revoked.

RECOMMENDED this 23rd day of January, 1989 at Tallahassee, Florida.

ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of January, 1989.

COPIES FURNISHED:

Joseph S. White, Esquire Assistant General Counsel Post Office Box 1489 Tallahassee, Florida 32302

William M. Floyd Post Office Box 1084

Gibsonton, Florida 33534

Jeffrey Long, Director Criminal Justice Standards

and Training Commission Post Office Box 1489 Tallahassee, Florida 32302

Daryl McLaughlin, Executive Director Florida Department of Law

Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

Docket for Case No: 88-004789

Orders for Case No: 88-004789