STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF LAW ENFORCEMENT, ) CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, )

)

Petitioner, )

)

vs. )

)

JERRY E. LAMBERT, )

)

Respondent. )

Case No. 02-4129PL

)

RECOMMENDED ORDER

Pursuant to notice and in accordance with Sections 120.569 and 120.57(1), Florida Statutes, a formal hearing was held on December 17, 2002, in Sebring, Florida, before Fred L. Buckine, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Joseph S. White, Esquire

Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

For Respondent: Jerry E. Lambert, pro se

126 East Royal Palm Avenue Lake Placid, Florida 33852

STATEMENT OF THE ISSUE

The issue is whether Respondent knowingly obtained or used, or endeavored to obtain or use, the property of another valued at $300 or more with the intent to temporarily or permanently

deprive the owner of the right to the property, or a benefit therefrom, or to appropriate the property to his own use, or to the use of any person not entitled thereto, as alleged in the Administrative Complaint.

PRELIMINARY STATEMENT

By Administrative Complaint dated July 13, 2001, Petitioner alleged that Respondent, without permission of the owner and without legal right to obtain, did in fact obtain and remove an air compressor valued at more than $300 from the site location of the lawful owner.

The Administrative Complaint alleges that Respondent was guilty of theft in violation of Section 812.014, Florida Statutes; that Respondent has not maintained good moral character in violation of Section 943.1395(7), Florida Statutes; that Respondent has perpetrated an act that would constitute a felony offense whether criminally prosecuted or not in violation of Rule 11B-27.0011(4)(a), Florida Administrative Code; and that Respondent is guilty of an intentional failure to maintain the qualifications established in Section 943.13(7), Florida Statutes.

On October 21, 2002, the Administrative Complaint and Respondent's Election of Rights were referred to the Division of Administrative Hearings for assignment of an Administrative Law Judge to conduct a de novo hearing and render a Recommended

Order. A Notice of Hearing, scheduling the final hearing for December 17, 2002, in Sebring, Florida, and an Order of Pre- hearing Instructions were issued on November 1, 2002.

On December 10, 2002, Petitioner filed a Motion to Compel Discovery or in the Alternative to Deem Admitted and for Summary Final Order. During the telephonic case status conference on December 17, 2002, rulings on all pending motions were reserved. At the onset of the final hearing, all pending motions filed by Petitioner were denied.

At the final hearing, Petitioner presented the testimony of four witnesses: David Trobaugh, owner of the compressor; Wayne Harris; Robert Harris; and Mark Schroder, Highlands County Sheriff's Department, and introduced two exhibits (Petitioner's Exhibits 1 and 2) in evidence. Respondent testified in his own behalf and introduced no exhibits in evidence.

The parties' request for more than ten days to submit proposed recommended orders was granted, thereby waiving the requirement for this Recommended Order to be entered within

30 days after receipt of the transcript. See Rule 28-106.216, Florida Administrative Code.

The Transcript of the final hearing was filed on

January 28, 2003. Petitioner filed a Proposed Recommended Order on February 7, 2003. Respondent did not file a proposed recommended order. Petitioner's Proposed Recommended Order has

been given careful consideration in the preparation of this Recommended Order.

FINDINGS OF FACT

Based upon the demeanor of the witnesses while testifying and other substantive and material evidence of record, the following findings of fact are made:

1. At all times material to this cause, Respondent was a certified Correctional Officer, having been certified on or about April 2, 1991, and issued Correctional Officer Certification No. 92406.

2. On October 8, 2000, Respondent, in the company of two other persons, Steven Smith and Henry Fox, went to a business named "Four Star Refinish" located at 898 County Road 621, Lake Placid, Florida. David Trobaugh is the owner of Four Star Refinish and the compressor at issue in this proceeding.

3. The building housing Four Star Refinish had been largely destroyed by fire before October 8, 2000, and the compressor, valued at more than $300, was located outside the building, undamaged.

4. On October 8, 2000, at the business site of Four Star Refinish, Respondent, Steven Smith, and Henry Fox, agreed to take the compressor and together removed the compressor from the premises and transported it to the residence of Steven Smith.

5. On October 12, 2000, Respondent gave a statement to Robert Neale, Highlands County Sheriff's Department, admitting that he, Steven Smith, and Henry Fox loaded the compressor onto a trailer and together transported it to Steven Smith's residence.

6. Respondent, after his admission, assisted Deputy Neale in recovering the compressor by contacting Steven Smith by telephone, who then provided the location of the compressor. At the location provided by Steven Smith, the compressor was located and recovered by Deputy Neale, identified by the owner, David Trobaugh, and returned to him.

7. Respondent, with knowledge of the unlawful taking of the compressor, with knowledge of the parties who unlawfully removed the compressor, and with knowledge of the compressor's whereabouts, concealed his participation in the aiding and abetting in the commission of a felony by Steven Smith and Henry Fox, when initially approached by law enforcement.

8. As a direct result of the foregone and on April 1, 2001, in the case of State v. Jerry E. Lambert, the State Attorney entered a nolle prosequi, in Highlands County Circuit Court Case No. CF00-00685A-XX, under which Respondent was charged with one count of Grand Theft in Excess of $300, with the stated ground for the nolle prosequi listed as "Case

   Referred to CDS (Citizen Dispute Settlement). An Agreement was reached and restitution and fees paid."

9. Petitioner has proven by clear and convincing evidence that Respondent, without permission of the owner and without legal right to obtain, did in fact obtain and remove an air compressor valued at more than $300 from the site location of the lawful owner.

10. Respondent's admitted participation in the commission of a felony offense evidenced his intentional failure to maintain good moral character and proves his failure to maintain qualifications required of a certified correctional officer. Respondent offered no mitigating evidence.

    CONCLUSIONS OF LAW

    
    

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

12. Section 812.014, Florida Statutes, provides:

    
    

    1. A person commits theft if he or she knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently:

       
       

       1. Deprive the other person of a right to the property or a benefit from the property.

          
          

       2. Appropriate the property to his or her own use or to the use of any person not entitled to the use of the property.

          * * *

          
          

          (2)(c) It is grand theft of the third degree and a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, if the property stolen is:

          
          

          1. Valued at $300 or more, but less than

             $5,000.

             
             

13. Section 943.1395(7), Florida Statutes, provides:

    
    

    (7) Upon a finding by the commission that a certified officer has not maintained good moral character, the definition of which has been adopted by rule and is established as a statewide standard, as required by s. 943.13(7), the commission may enter an order imposing one or more of the following penalties:

    
    

    1. Revocation of certification.

       
       

    2. Suspension of certification for a period not to exceed 2 years.

    
    

14. Section 943.13(7), Florida Statutes, provides:

    
    

    On or after October 1, 1984, any person employed or appointed as a full-time, part- time, or auxiliary law enforcement officer or correctional officer; on or after October 1, 1986, any person employed as a full-time, part-time, or auxiliary correctional probation officer; and on or after October 1, 1986, any person employed as a full-time, part-time, or auxiliary correctional officer by a private entity under contract to the Department of Corrections, to a county commission, or to the Correctional Privatization Commission shall:

    
    

    * * *

    (7) Have a good moral character as determined by a background investigation under procedures established by the commission.

    
    

15. Rule 11B-27.0011(4)(a), Florida Administrative Code, provides:

    1. For the purposes of the Commission's implementation of any of the penalties specified in Section 943.1395(6) or (7), F.S., a certified officer's failure to maintain good moral character required by Section 943.13(7), F.S., is defined as:

       
       

       1. The perpetration by an officer of an act that would constitute any felony offense whether criminally prosecuted or not.

    
    

16. Petitioner must prove the material allegations by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern and Company, Inc., 670 So. 2d 932 (Fla. 1996); and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

17. For the reasons already stated in the Findings of Fact, and using the statutory definition as guidance, it is clear that that Respondent, a certified correctional officer, obtained the property of another with intent to either temporarily or permanently deprive the lawful owner of the use thereof. By his active participation, Respondent aided and abetted in the commission of a felony of the third degree, grand thief of property valued at $300 or more. It is also clear that Respondent's participation in this criminal act demonstrated his

failure to maintain the good moral character statutorily required of certified correctional officers.

RECOMMENDATION

Based on the forgoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order revoking Respondent's Correctional Officer Certification No. 92406.

DONE AND ENTERED this 18th day of February, 2003, in Tallahassee, Leon County, Florida.

FRED L. BUCKINE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 18th day of February, 2003.

COPIES FURNISHED:

Jerry E. Lambert

126 East Royal Palm Avenue Lake Placid, Florida 33852

Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Rod Caswell, Program Director Division of Criminal Justice

Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 02-004129PL

Orders for Case No: 02-004129PL