STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
GEORGE F. WARNER, )
)
Petitioner, )
)
vs. ) CASE NO. 92-2857RXP
)
DEPARTMENT OF CORRECTIONS, )
)
Respondent. )
)
SUMMARY FINAL ORDER
By Petition for Administrative Determination on the Invalidity of Rule 33- 11.0065(5)(e), Florida Administrative Code, George F. Warner, Petitioner, seeks to have this Rule declared to be an invalid exercise of delegated legislative authority by the Department of Corrections, Respondent. As grounds therefor, it is alleged that Petitioner is an inmate at Florida State Prison at Starke, Florida, that he has been placed in Close Management Status No. 2, that while in such status he has not been assigned to work as a runner or on an inside fence squad, and therefore, has been unable to earn "gain-time." Prisoners in Petitioner's status who are assigned such duties are credited with gain-time.
Petitioner further contends that the Rule exceeds the legislative grant of authority to enact, is vague, fails to establish criteria for who may be assigned to a work program, and is arbitrary and capricious.
Section 944.275(7) directs the Department to promulgate rules to implement the granting, forfeiture, and restoration of gain-time.
Section 944.275(4)(b), Florida Statutes, provides: For each month in which a prisoner works dili- gently, participates in training, uses time constructively, or otherwise engages in
positive activities, the department may grant up to 20 days of incentive gain-time, which shall be credited and applied monthly.
The challenged Rule 33-11.0065(5), Florida Statutes, provides in pertinent part:
Disqualification. The following conditions will disqualify an inmate for an award of incentive gain-time for the period stated.
* * *
(e) Close Management. An inmate assigned to close management who is not involved in assigned programs shall be ineligible for an award of incentive gain-time for the time not assigned to work or a program.
It is subsection (e) which Petitioner contends is invalid.
Accepting as true all factual allegations in the Petition for the purpose of this Summary Final Order, we have a prisoner in Close Management Status No. 2 which is an intermediate stage of close management somewhere between close management and population.
The above-cited statutes provide authority for the Department to promulgate rules regarding the granting of gain-time while Section 944.275(4)(b) above- cited provides the Department with discretionary authority to grant gain-time to prisoners. A prisoner in close management is in a more restricted category than one in the general prison population. In such a status, the prisoner would be expected in have less opportunity to earn gain-time by participating in activities available to the general prison population.
Accordingly, the Rule respecting the earning of gain-time by prisoners in close management is, on its face, not in conflict with the enabling statute, nor does it exceed the general authority granted to the Department to promulgate rules.
Petitioner appears to be complaining that while in close management he has not been selected for a program in which he can earn gain-time. Work assignments are addressed in Rule 33-03.003, Inmate Work Program, and not in the rule here challenged.
From the foregoing, it is concluded that Rule 33-11.0065(5)(e), does not exceed the legislative authority conferred upon the Department by Section 944.275(4)(b) and (7), is not vague, does not fail to establish adequate standards for granting of gain-time, is not arbitrary and capricious and does not invest unbridled discretion in the agency to deny gain-time to inmates in close management. It is therefore,
ORDERED that George F. Warner's Petition challenging the validity of Rule 33-11.0065(5)(e), Florida Administrative Code, be dismissed.
DONE and ORDERED this 18th day of June, 1992, in Tallahassee, Florida.
K. N. AYERS Hearing Officer
Division of Administrative Hearings The Desoto Building
1230 Apalachee Parkway
Tallahassee, FL 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 18th day of June, 1992.
Copies furnished to: George F. Warner, #056887
Florida State Prison, M-1-S-5
Post Office Box 747 Starke, FL 32091
Louis A. Vargas, Esquire Department of Corrections 2601 Blairstone Road
Tallahassee, FL 32399-2500
Claire Dryfuss, Esquire Assistant Attorney General The Capitol, Suite 1603 Tallahassee, FL 32399-1050
Carroll Webb, Executive Director Administrative Procedures Committee Holland Building, Room 120 Tallahassee, FL 32399-1300
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.
| Issue Date | Proceedings |
|---|---|
| Jun. 18, 1992 | Summary CASE CLOSED. Final Order sent out. Hearing held |
| May 13, 1992 | (Respondent) Motion to Dismiss or, Alternately, for Summary Final Order filed. |
| May 12, 1992 | Order of Assignment sent out. |
| May 11, 1992 | Letter to Liz Cloud & Carroll Webb from Marguerite Lockard |
| May 08, 1992 | Petition for Administrative Determination on the Invalidity of Challenged Rule 33-11.0065(5)(e) Florida Administrative Code filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 18, 1992 | DOAH Final Order | Rule involving gain time for prisoners in close mangement held valid. |
