STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEONARD BEAN, )

)

Petitioner, )

)

vs. ) CASE NO. 91-2444RX

) DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

) ROBERT DAVID ROY, )

)

Petitioner, )

)

vs. ) CASE NO. 91-2445RX

) DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

) JIMMY STEPHENS, )

)

Petitioner, )

)

vs. ) CASE NOS. 91-2446RX

) 91-4083RX

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

) ROBERT DAVID ROY, )

)

Petitioner, )

)

vs. ) CASE NO. 91-3574RX

) DEPARTMENT OF CORRECTIONS, )

)

Respondent, )

and )

)

LEONARD BEAN, )

)

Intervenor. )

)

FINAL ORDER

The Respondent has filed a Motion to Dismiss for Lack of Jurisdiction in these cases. The Petitioner in case number 91-2444R has filed a response in

opposition to the motion. The Petitioner in case numbers 91-2446R and 91-4083R has also filed a response in opposition.

The Florida Legislature enacted Chapter 92-166, Laws of Florida, amending Section 120.52(12), Florida Statutes, to exclude inmates from the definition of a "party" for purposes of rule challenge proceedings pursuant to Sections 120.54 and 120.56, Florida Statutes. As pointed out by the Respondent, Chapter 92-166 eliminates the jurisdiction of the Division of Administrative Hearings over inmate rule challenges. The effective date of Chapter 92-166 was July 1, 1992. Consequently, as of July 1, 1992, the Division of Administrative Hearings lacks jurisdiction over inmate rule challenges. At issue is whether the loss of jurisdiction applies to inmate rule challenges filed prior to the effective date of Chapter 92-166.

Based upon the decision of the Supreme Court of Florida in Griffith v.

Florida Parole and Probation Commission, 485 So.2d 818 (Fla. 1986), if jurisdiction is removed from a tribunal, jurisdiction is lost over all cases regardless of when they may have been filed unless the legislature expressly provides otherwise. As stated by the Court:

When the very purpose of Congress is to take away jurisdiction, of course it does not survive, even as to pending suits, unless expressly reserved. . . . If the aim is to destroy a tribunal or take away cases from it, there is no basis for finding saving exceptions unless they are made explicit.

485 So.2d at 820. In light of the Griffith decision, the failure of the Legislature to provide that the Division of Administrative Hearings will continue to have jurisdiction over inmate rule challenges pending before the Division of Administrative Hearings prior to July 1, 1992, means that jurisdiction over all pending inmate rule challenges has been lost by the Division of Administrative Hearings.

The application of Griffith to these cases does involve a somewhat harsh impact on all concerned. These cases were filed in 1991, they went through a long pre-hearing process, they took several hours to hear and they cost all concerned a great deal of time and effort to get to this point. All of the parties wrote lengthy proposed final orders. The final order in these cases should have been entered on or before June 3, 1992. If the final order had been entered on time, this issue may not have arisen.

Although not entered prior to July 1, 1992, the final order was written.

In light of the time and effort that the undersigned and counsel for the Respondent spent on these cases, the suggestion of Petitioner Bean's representative that the entry of the final order was delayed as part of some conspiracy to circumvent the rights of the Petitioners does not deserve comment.

Although the final order in these cases has been written, having lost jurisdiction over these cases, there is no authority to enter the final order and any such final order would be of no effect.

The undersigned has no authority to address the constitutional issues raised by the Petitioners.

ORDER

Based upon the foregoing, it is

ORDERED that the Petitioners' Petitions in these cases are DISMISSED. DONE and ENTERED this 16th day of July, 1992, in Tallahassee, Florida.

LARRY J. SARTIN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 16th day of July, 1992.

COPIES FURNISHED:

Robert David Roy #006000

Florida State Prison Post Office Box 747 Starke, Florida 32091

Leonard Bean #078935

Florida State Prison Post Office Box 747 Starke, Florida 32091

William Van Poyck #034071

Florida State Prison Post Office Box 747 Starke, Florida 32091

Jimmy Stephens #033503

Florida State Prison Post Office Box 747 Starke, Florida 32091

Claire Dryfuss

Assistant Attorney General Division of General Legal Services Department of Legal Affairs

Suite 1603, The Capitol Tallahassee, Florida 32399-1050

Donna Malphurs Suite 439

Department of Corrections 2601 Blairstone Road

Tallahassee, Florida 32399-2500

Carroll Webb, Executive Director Administrative Procedures Committee Holland Building, Room 120 Tallahassee, Florida 32399-1300

Liz Cloud, Chief

Bureau of Administrative Code The Capitol, Room 1802 Tallahassee, Florida 32399-0250

Harry K. Singletary, Jr., Sec. Department of Corrections 2601 Blairstone Road

Tallahassee, Florida 32399-2500

Louis A. Vargas Department of Corrections 2601 Blairstone Road

Tallahassee, Florida 32399-2500

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Docket for Case No: 91-002444RX

Orders for Case No: 91-002444RX