STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ENRIQUE J. DIAZ, )

)

Petitioner, )

)

vs. ) CASE NO. 92-2856RXP

) DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

FINAL ORDER

The Respondent has filed a Motion to Dismiss for Lack of Jurisdiction in this case. No response to the motion has been filed by the Petitioner.

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 continues 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. This case must, therefore, be dismissed.

ORDER

Based upon the foregoing, it is

ORDERED that the Petition for Administrative Determination in this case is DISMISSED.

DONE and ENTERED this 21st 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 21st day of July, 1992.

COPIES FURNISHED:

Enrique J. Diaz #065599

Florida State Prison Post Office Box 747 Starke, Florida 32091

Claire Dryfuss

Assistant Attorney General Department of Legal Affairs The Capitol, Suite 1603

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

Harry K. Singletary, Jr., Sec. Department of Corrections

2601 Blairstone Road

Tallahassee, Florida 32399-2500

Louis Vargas General Counsel

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: 92-002856RX

Orders for Case No: 92-002856RX