STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Petitioner, )

)

vs. ) CASE NO. 94-6448

)

LEWIS W. COTT, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this proceeding on June 29, 1995, in Orlando, Florida before Daniel Manry, a duly designated Hearing Officer of the Division of Administrative Hearings. The undersigned conducted the formal hearing by video conference from Tallahassee, Florida. The parties and court reporter attended the formal hearing in Orlando.

APPEARANCES

For Petitioner: Douglas D. Sunshine

Assistant General Counsel Department of State Division of Licensing

The Capitol, Mail Station 4 Tallahassee, Florida 32399-0250

For Respondent: Carroll Barco, Esquire

Carroll S. Barco, P.A. Post Office Box 593606

Orlando, Florida 32859-3606 STATEMENT OF THE ISSUE

The issue for determination is whether Respondent was found guilty of a felony in Ohio in 1933, within the meaning of Section 790.23(1)(d), Florida Statutes, 1/ and, therefore, should have his license for a concealed weapon revoked.

PRELIMINARY STATEMENT

Petitioner filed a one-count Amended Administrative Complaint against Respondent on October 3, 1994. Respondent timely requested a formal hearing.

At the formal hearing, Petitioner called no witnesses but submitted a certified copy of Respondent's one page, written, plea of guilty to an indictment for manslaughter in Ohio in 1933. Petitioner's Exhibit 1 was admitted in evidence without objection.

Respondent testified in his own behalf and called no other witnesses.

Respondent submitted one composite exhibit consisting of relevant potions of the court files in two cases against Respondent in Ohio; one of which included a copy of Respondent's written plea in Petitioner's Exhibit 1. Respondent's Exhibit 1 was admitted in evidence without objection.

A transcript of the formal hearing was not requested by either party.

Petitioner and Respondent timely filed proposed recommended orders ("PRO"s) on July 10, 1995.

FINDINGS OF FACT

1. In 1932, Respondent was driving one of three cars involved in an automobile accident in Ohio. Respondent was approximately 18 years old.

   
   

2. Two females in one of the automobiles not driven by Respondent died in the accident. They were Ms. Clara Shaw and Ms. Betty Montgomery.

   
   

3. In January, 1933, Respondent was indicted for manslaughter of Ms. Montgomery. 2/ Respondent was also indicted for "failure to stop in case of an automobile accident" ("failure to stop").

   
   

4. Manslaughter was a felony in Ohio in 1933. Failure to stop was not a felony. 3/

   
   

5. Respondent initially pled not guilty to both manslaughter and failure to stop. Pursuant to a plea bargain between Respondent's attorney and the state attorney, Respondent subsequently changed his plea and entered a plea of guilty to both manslaughter and failure to stop.

   
   

6. In exchange for Respondent entering a guilty plea, Respondent was sentenced to six months in the county jail and placed on probation for one year. Respondent served only 37 days of his sentence. The balance of his sentence and the imposition of court costs was suspended during the court's April term. Respondent successfully completed his probation.

   
   

7. Respondent was not found guilty of manslaughter in Ohio in 1933. There is no adjudication of guilt in the court file for either manslaughter or failure to stop.

   
   

8. Only a certificate of sentence appears in the court file. A certificate of sentence was entered only for failure to stop. No certificate of sentence was entered for manslaughter.

   
   

9. In 1933, Section 12404 of the Ohio General Code required a person who was found guilty of manslaughter to be:

   
   

   . . . imprisoned in the penitentiary not less than one year nor more than twenty years.

   
   

   The court had no authority to find Respondent guilty of manslaughter and then either impose a sentence of less than one year or allow Respondent to serve out that sentence anywhere except the state penitentiary. 4/

   
   

10. The court sentenced Respondent to six months in the county jail. Respondent served only 37 days of his six month sentence. None of those days were served in the state penitentiary.

11. Respondent remained in Ohio until he moved to Florida in 1940 or 1941. The state of Ohio never prevented Respondent from exercising his civil rights. Once Respondent reached the age of 21, he voted in local, state, and national elections in Ohio. Respondent also voted in local, state, and national elections in Florida for 50 years. 5/

    
    

12. Respondent served in the U.S. military for 2 1/2 years after his criminal conviction in Ohio. Thereafter, Respondent was employed in the defense industry by North American Aviation and by Martin Marietta from 1951 through 1977.

    
    

13. Respondent had a confidential security clearance at North American Aviation and a secret security clearance at Martin Marietta. 6/ Respond disclosed his Ohio criminal record during security checks required for both North American Aviation and Martin Marietta.

    
    

14. Respondent has been licensed to carry a concealed weapon in Florida for approximately seven years. He is applying for the third renewal of that license.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto. The parties were duly noticed for the formal hearing.

    
    

16. Petitioner has the burden of proof in this proceeding. Petitioner must demonstrate by clear and convincing evidence that Respondent committed the acts alleged in the Amended Administrative Complaint and that the proposed disciplinary action is appropriate. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

17. Petitioner failed to satisfy its burden of proof. Section 790.23(1)(d), in relevant part, makes it unlawful to own or possess a firearm only if Respondent was "found guilty" of a felony. It was less than clear and convincing that Respondent was "found guilty" of a felony in Ohio in 1933 within the meaning of Section 790.23(1)(d).

    
    

18. The Ohio court did not expressly adjudicate Respondent guilty of the felony charge of manslaughter. 7/ In addition, the court did not enter a certificate of sentence for the charge of manslaughter. Finally, no separate terms of probation were imposed for the charge of manslaughter.

    
    

19. Petitioner argues that Respondent was implicitly "found guilty" by the Ohio court because the court suspended sentence for the charge of manslaughter and placed Respondent on probation. 8/ In the absence of an express adjudication of guilt, a determination of whether Respondent was implicitly "found guilty" of a felony in Ohio 62 years ago must be made in light of the facts and circumstances surrounding the court's disposition of the case.

    
    

20. Several factors make it less than clear and convincing that Respondent was "found guilty" of a felony in Ohio in 1933. First, the Ohio court had no authority in 1933 to find Respondent guilty of manslaughter and impose a sentence of less than one year or permit the sentence to be served anywhere except the state penitentiary.

21. As the court noted in State v. Emonds, 11 Ohio Opinions 258, 259 (Common Pleas Court, 1938):

    
    

    The court must chose (sic) . . . between two courses. [It] may commit the defendant to the penitentiary or . . . suspend sentence and place the defendant on probation.

    
    

22. The Ohio court did not choose between suspending sentence and probation. Rather, the court imposed a sentence on Respondent. Respondent was sentenced to six months, a term less than one year. The court permitted Respondent to serve his sentence in the county jail, a place of confinement other than the state penitentiary.

    
    

23. Petitioner argues that the court suspended sentence and placed Respondent on probation for the charge of manslaughter. However, no separate terms of probation were imposed for the charge of manslaughter. The probation imposed for the charge of manslaughter, if any, was coterminous with the probation imposed for the charge of failure to stop.

    
    

24. Competent and substantial evidence of the court's disposition of the case in Ohio is explained and supplemented, within the meaning of Section 120.58(1)(a), by testimony from Respondent that he changed his plea of not guilty to a plea of guilty in accordance with a plea bargain negotiated between Respondent's attorney and the Ohio state attorney. 9/ Respondent's testimony was credible and persuasive. Thus, Respondent's plea of guilty was, in substance, a plea of convenience rather than a plea of guilt. 10/

    
    

25. Facts and circumstances subsequent to the court's disposition of Respondent's case in 1933 also explain and supplement competent and substantial evidence that Respondent was not found guilty of a felony 62 years ago for purposes of Section 790.23(1)(d). The state of Ohio never prevented Respondent from exercising his civil rights in Ohio. Respondent served in the U.S. military for over two years and received security clearances in the defense industry for over 30 years. Respondent has exercised his civil rights in Florida for approximately 50 years and has been licensed by Florida to carry a concealed weapon for over seven years.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent not

guilty of being "found guilty" of a felony in another state, within the meaning

of Section 790.23(1)(d), and granting Respondent's request for the license at issue in this proceeding.

RECOMMENDED this 25th day of July, 1995, in Tallahassee, Florida.

DANIEL MANRY

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 25th day of July, 1995.

ENDNOTES

1/ All chapter and section references are to Florida Statutes (1993) unless otherwise stated.

2/ Respondent was also indicted for manslaughter of Ms. Shaw. However, counsel for Petitioner stipulated during the formal hearing that the Administrative Complaint contains no charges pertaining to the indictment of Respondent for manslaughter of Ms. Shaw. Therefore, the indictment involving Ms. Shaw is not at issue in this proceeding.

3/ Sec. 790.23(1) makes it unlawful for any person to own or possess a weapon if that person has been found guilty of an offense that is a felony in another state. The relevant inquiry is whether manslaughter was a felony in Ohio in 1933 and whether Respondent was found guilty of such an offense. It is not necessary to determine whether manslaughter is a felony in Ohio today.

4/ Although the court could have suspended sentence and placed Respondent on probation, the court did not do so. Rather, the court imposed a sentence, as evidenced by the certificate of sentence for failure to stop, and confined Respondent to the county jail. The court also placed Respondent on probation. For a discussion of applicable Ohio law pertaining to this issue, see paras. 20- 21, infra.

5/ Respondent moved from Ohio to Florida in 1958.

6/ The three security classifications that were available at the time, in ascending order, were confidential, secret, and top secret.

7/ The Ohio legislature and the Ohio courts recognized a distinction between a plea of guilty and a finding of guilt. In State of Ohio v. Hubert Emonds, 11 Ohio Opinions 258, 259 (Common Pleas Court, 1938), the court states:

Section 13452-1, General Code, reads as follows:

In prosecutions for crime . . . where the defendant has pleaded guilty, or been found guilty . . . .

8/ Petitioner cites Reiter v. Alvis, 144 N.E.2d 902 (Ohio 1957) for the proposition that a judgment of conviction that is journalized is not open to collateral attack. However, no judgment of conviction or adjudication of guilt was ever journalized by the Ohio court in the manslaughter charge against

Respondent. No certificate of sentence was entered by the court for manslaughter. A certificate of sentence was entered only for the charge of failure to stop. Therefore, the holding in Reiter is inapposite to the facts surrounding the disposition of the felony charge against Respondent by the Ohio court.

9/ Such evidence of the terms of a plea bargain is a type that would reasonably be relied upon by prudent persons, within the meaning of Sec. 120.58(1)(a), to determine the intent of the court in disposing of a case 62 years ago.

10/ Compare Rule 11(e)(1)(c), Fed. Rules of Crim. Proc. (1992). The federal rule is intended to permit plea negotiations between counsel for the government and defendants. However, the great majority of defendants in federal courts plead guilty because the court will not permit a plea of nolo contendere. Thus, in federal criminal proceedings, a plea that is cast in the form of a guilty plea may, in substance, be the only plea of convenience permitted by the court. See, Moore's Federal Practice, 1992 Rules Pamphlet, pgs. 110-118 (Matthew Bender 1992).

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-6448

Petitioner's Proposed Findings Of Fact. 1.-3. Accepted in substance

4.-5. Rejected as not supported by clear and convincing evidence. Respondent's guilty plea was journalized. No adjudication of guilt or "conviction" was journalized, and no certificate of sentence was journalized.

Respondents' Proposed Findings Of Fact.

Respondent's proposed findings of fact are rejected because they fail to comply with the order of the undersigned entered on the record during the formal hearing.

COPIES FURNISHED:

Hon. Sandra B. Mortham Secretary of State

The Capitol

Tallahassee, Florida 32399-0250

Don Bell General Counsel

The Capitol, PL-02

Tallahassee, Florida 32399-1250

Douglas D. Sunshine, Esquire Assistant General Counsel Florida Department of State Division of Licensing

The Capitol, MS #4

Tallahassee, Florida 32399-0250

Carroll S. Barco, Esquire Carroll S. Barco, P.A.

P.O. Box 593606

Orlando, Florida 32859-3606

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF STATE

DEPARTMENT OF STATE, DIVISION OF LICENSING,

Petitioner,

DOAH CASE NO: 94-6448

v. CASE NO: CW93-483

W87-00654

LEWIS W. COTT,

Respondent.

/

FINAL ORDER

This cause came before the Department of State, Division of Licensing, for consideration and final agency action. A formal administrative hearing was conducted pursuant to Section 120.57(1), Florida Statutes, on June 29, 1995, before Daniel Manry, a duly assigned Hearing Officer of the Division of Administrative Hearings. The Recommended Order was submitted by the Hearing Officer on July 25, 1995, a copy of which is attached. Petitioner timely filed exceptions. With the exception of Petitioner's Exception number 4, addressed below, Petitioner's exceptions are immaterial or unnecessary for the determination of this proceeding.

RULINGS ON EXCEPTIONS FILED BY PETITIONER

Petitioner's Exception number 4 excepts to the first sentence of the Hearing Officer's Finding of Fact number 7 to the extent that the Hearing Officer found that Respondent was not "found guilty" of manslaughter in Ohio.

This exception is accepted. A complete review of the record indicates no substantial evidence to support this portion of Finding of Fact number 7. Rather, the record indicates in Ohio Case number 19438 that Respondent entered a plea of guilty, the court suspended the imposition of sentence, and placed Respondent on one year's probation. See Petitioner's Exhibit 1. The court, having received a plea of guilty, had no other choice but to find Respondent guilty of manslaughter. Thus, the Hearing Officer's Finding of Fact number 4 is rejected to the extent it concludes that Respondent was not "found guilty".

However, that part of the Hearing Officer's Finding of Fact number 7 which found no adjudication of guilt or conviction in Ohio Case number 19438 is supported by the record.

FINDINGS OF FACT

The Department of State hereby adopts and incorporates by reference the Findings of Fact in the Recommended Order with the exception of the first sentence of Finding of Fact number 7, which is rejected.

CONCLUSIONS OF LAW

The Department of State hereby adopts and incorporates by reference the Conclusions of Law in the Recommended Order with the exceptions of those portions of Conclusions of Law Numbers 17, 19, 20, and 25 which are rejected as Respondent was "found guilty" of a felony. The Department of State supplements the Hearing Officer's Conclusion of Law number 17 to conclude that the Petitioner did not meet its burden to prove by clear and convincing evidence the allegations in the Administrative Complaint. The Administrative Complaint alleged that Respondent was "convicted" of a felony; the Hearing Officer correctly found in Findings of Fact number 7 that there was no evidence of an adjudication of guilt or conviction.

WHEREFORE, based upon on the Foregoing, it is ORDERED that the Administrative Complaint dated October 3, 1994, be DISMISSED.

NOTICE OF RIGHTS

This Order constitutes final agency action. Any party who is adversely affected by this Order may seek judicial review under Section 120.68, Florida Statutes. Such proceedings are commenced by filing a Notice of Appeal, pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the Deputy Clerk of the Division of Licensing, Department of State, The Capitol, Mail Station number 4, Tallahassee, Florida 32399-0250; and by filing a copy of the Notice of Appeal, accompanied by the applicable filing fees, with the First District Court of Appeal, or with the District Court of Appeal in the appellate district where the party resides. The Notice of Appeal must be filed within thirty (30) days of the day this Order is filed with the Clerk of the Department.

DONE AND ORDERED at Tallahassee, Florida this 19th day of October, 1995.

John M. Russi, Director Division of Licensing

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing Final Order has been sent by

U.S. Mail this 19th day of October, 1995, to Carroll Barco, Esquire, Carroll S. Barco, P.A., Post Office Box 593606, Orlando, Florida 32859-3606.

Michele Guy

Assistant General Counsel Department of State Division of Licensing

The Capitol, MS number 4 Tallahassee, Florida 32399-0250

(904) 488-3492

Copies Furnished To: Filed with Agency Clerk

License File Division of Administrative Hearings Case number 94-6448

Docket for Case No: 94-006448

Orders for Case No: 94-006448