vs.
Respondent.
) Case No. 12-1931PL
On October 10, 2012, a duly-noticed hearing was held in Gainesville and Tallahassee, Florida, via video teleconference, before F. Scott Boyd, an administrative law judge assigned by the Division of Administrative Hearings.
For Petitioner: Elissa R. Saavedra, Esquire
The issue is whether Respondent failed to maintain good moral character in violation of Section 943.1395(7), Florida Statutes (2011),1/ and if so, what penalty should be imposed.
On February 1, 2012, Petitioner, the Criminal Justice Standards and Training Commission (Petitioner or the Commission) filed an Administrative Complaint against Respondent,
Mr. Roosevelt Mitchell (Respondent or Mr. Mitchell), alleging that Respondent lacked good moral character in that he perpetrated acts that would constitute the felony offense of Grand Larceny and the misdemeanor offense of Trespass, or lesser included offenses, in violation of section 943.1395(7), Florida Statutes. Respondent disputed the allegations in the Administrative Complaint and requested a hearing pursuant to section 120.57(1), Florida Statutes. On May 29, 2012, the matter was referred to the Division of Administrative Hearings for assignment of an administrative law judge.
Petitioner’s Motion for Continuance was granted and hearing was scheduled for October 10, 2012. At hearing, Petitioner presented the testimony of Mr. Richard Hopper and Ms. Cynthia Hopper, husband and wife, and record owners of the residence involved in this case, and that of Detective Ollue Meyers, and Lieutenant Dennis McFadden, both of the Marion County Sheriff’s Office. Petitioner’s Motion for Official Recognition of two Warranty Deeds as filed in the records of Marion County, Florida, was granted. Petitioner offered one additional composite exhibit consisting of a DVD containing 65 photographs
of the residence, which was admitted into evidence without objection. Respondent testified himself and offered a printout from the Marion County Property Appraiser’s website of a property record pertaining to the residence with a notation that an adverse possession claim had been filed on the property, which was admitted over objection as Exhibit R-1, as discussed below.
The Transcript was filed with the Division on October 26, 2012. At the request of the parties, the time for submission of Proposed Recommended Orders was set for November 13, 2012.
Petitioner timely filed a Proposed Recommended Order, which was considered.
The Commission is an agency of the State of Florida responsible for the certification, and the revocation of certification, of officers and instructors in the criminal justice disciplines.
Mr. Mitchell was certified as a Corrections Officer in the State of Florida by the Commission on March 29, 1988, and issued Correctional Certification #54803.
Mr. Mitchell was certified as a Law Enforcement Officer in the State of Florida by the Commission on August 13, 1990, and issued Law Enforcement Certification #54802.
Mr. Mitchell is retired from the Marion County Sheriff’s Office and served in law enforcement for about 20 years.
Mr. Richard Hopper and Ms. Cynthia Hopper owned the residence located at 16040 S.E. 31st Court, Ocala, Florida, (Summerfield property) from about March 29, 2001, until about August 25, 2011.
During 2010, the Hoppers were experiencing financial difficulties and believed they would be unable to keep paying the mortgage on the Summerfield property. They thought it was only a matter of time before the bank repossessed it. They decided to go ahead and move to Gainesville, Florida.
Mr. Hopper was unemployed, and they reasoned that Ms. Hopper would be closer to her job at Shands Hospital there. They thought an apartment in Gainesville would be a little less expensive, and that they would save on commuter expenses.
Mr. and Ms. Hopper moved out of the Summerfield property sometime in August 2010.
The Hoppers left some personal property in the house, which they did not intend to abandon. They made trips almost once a week between the Summerfield property and their new residence in Gainesville, Florida. On each trip they took additional belongings from the Summerfield property with them, until very little was left at the Summerfield property.
Ms. Hopper described the remaining property as consisting of some home schooling books, a closet of her clothes, a pool table, a blue chair, and some desks. She noted that there were “a lot of personal things from my childhood in there and although it may have looked like junk to someone else, it was very personal to me.”
By the end of 2010, the Summerfield property was very rundown. Routine maintenance had not been performed and the property presented an abandoned appearance. The lawn was overgrown and there was trash in the yard. The doors were unlocked and there was an open window with no screen.
Mr. Mitchell lived in the area and was aware of the state of the Summerfield property.
Mr. Mitchell discussed the difference between squatters’ rights and adverse possession under section 95.18, Florida Statutes, with his friend and co-worker Lieutenant Dennis McFatten of the Marion County Sheriff's Office on a couple of occasions. Lt. McFatten was not specifically familiar with the adverse possession statute and Mr. Mitchell explained his own understanding of it. Lt. McFatten concluded that if an individual moved into a house without getting permission from the owner in his district, he would call the State Attorney’s office to get legal advice, but that he would be inclined to make an arrest.
Mr. Mitchell bought a Black’s Law Dictionary and tried to interpret section 95.18, Florida Statutes.
On or around January 31, 2011, Mr. Mitchell filed an adverse possession claim on the Hoppers' residence with the Marion County Property Appraiser’s office.
Mr. Mitchell also entered the structure on the Summerfield property on January 31, 2011. He did not have permission from the Hoppers to do so. His intent was to adversely possess the property. He was retired from employment as a law enforcement officer at this time.
Mr. Mitchell filed the adverse possession papers with the property appraiser in the mistaken belief that this would keep his entry onto the Summerfield property from constituting an illegal trespass.
The Hoppers did not know Mr. Mitchell at this time and had not authorized, licensed, or invited him to enter the structure.
Sometime in early February, 2011, Mr. Mitchell rented a dumpster and had it delivered to the Summerfield property. Mr. Mitchell threw some the Hoppers' remaining personal belongings that he found in the structure into the dumpster.
Mr. Mitchell described this personal property as follows:
It was trash. I mean, that’s all I can call it. It isn’t something that you would use. I can tell you that. That’s why they left it. Anything that was left in the house was not nobody gonna use.
Mr. Mitchell erroneously believed the property that he threw in the dumpster had been abandoned.
On or about February 10, 2012, when the Hoppers next returned to the Summerfield property, they noticed the dumpster in the driveway as they approached the property. Mr. Hopper testified that it was a large dumpster, with the top edge probably above his head. They believed that the bank had repossessed the home, and they simply had not yet been notified. They slowly drove on by the property and did not stop.
Mr. Hopper testified that when they saw the dumpster and believed the property had been repossessed, it “hit them “like a load of bricks.” Ms. Hopper testified she could see some of their personal property in the dumpster. Ms. Hopper started crying. They believed that the house and all of the items in it were now out of their hands. They Hoppers testified that they believed they had no further rights to anything. The Hoppers made no effort to stop their vehicle to ascertain what was happening or to try to retrieve their personal property.
Mr. Mitchell changed the locks on the doors of the Hoppers' residence, and painted portions of the interior walls without the Hoppers' permission.
Mr. Mitchell turned on the electricity at the Hoppers' residence with Sumter Electric Company.
Mr. Mitchell parked a trailer with tag #I147QZ with his personal belongings in the garage of the Hoppers' residence.
On or about February 18, 2011, Mr. Mitchell called Mr. Hopper to advise him that he had filed the adverse possession claim on Mr. and Ms. Hopper's residence. They discussed the adverse possession statute. They also discussed a
Christian website. Mr. Hopper did not agree with Mr. Mitchell’s attempt to gain adverse possession of the property.
On or about March 5, 2011, the Hoppers returned to the Summerfield property. They found the locks on the doors had been changed. They could see through a window that the walls had been partially painted. The Hoppers called the Ocala Sheriff’s Office.
After a Deputy arrived, the Hoppers gained entry to the structure. They found a utility trailer in the garage. There was furniture in the trailer and elsewhere around the garage that did not belong to the Hoppers. They found a work order for carpet cleaning lying on a counter. They noticed that several items of their personal property that had been left in the house were missing.
Ms. Hopper testified that the items that were missing included her clothes and lots of her personal items. While a price could not be put on the sentimental items, she testified that the fair market value of the missing personal property was between $500 and $600.
The Hoppers did not have photographs, receipts, or other documentation of the missing items of property.
Ms. Hopper recalled the missing items solely from her memory.
On or about March 6, 2011, the Hoppers changed the locks on the front and back doors and disabled the garage door entry.
On March 7, 2011, Mr. Mitchell called Ms. Hopper and asked her if the Hoppers had gone back to the Summerfield property. She said yes. Mr. Mitchell then asked her if they had changed the locks. When she advised him that they had, Mr. Mitchell asked if he could get in to get his things back.
Ms. Hopper said, “Not without me there, because it is my house.” Mr. Mitchell was polite during the call. Mr. Hopper got on the telephone with Mr. Mitchell and they began discussing religion and scripture. This conversation irritated Ms. Hopper, who told her husband to hang up the phone. She became very upset.
Mr. Mitchell was arrested and later entered into a pre-trial diversion program where he was ordered to pay $575.00 in restitution to Ms. Cynthia Hopper.
Mr. Mitchell paid $575.00, but did not believe the personal property he had thrown away was worth that much. He paid that amount, as he testified, “to get it behind me, I did what they wanted me to do, so that’s what I did.”
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with sections 120.569 and 120.57(1), Florida Statutes (2012).
The Criminal Justice Standards and Training Commission is responsible for the certification and regulation of law enforcement officers and instructors pursuant to section 943.12, Florida Statutes (2012).
Petitioner seeks to take disciplinary action against Respondent's certifications as a Corrections Officer and Law Enforcement Officer. Disciplinary action constitutes a penal proceeding, and Petitioner bears the burden of prove the allegations in the Administrative Complaint by clear and convincing evidence. Dep't of Banking and Fin. v. Osborne Stern
& Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So.
2d 292 (Fla. 1987).
Clear and convincing evidence has been said to require:
[T]hat the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.
In re Henson, 913 So. 2d 579, 590 (Fla. 2005)(quoting Slomowitz
v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983)).
As a preliminary evidentiary matter, Petitioner objected to the introduction into evidence Exhibit R-1, purporting to be a computer screen printout of property records of the Property Appraiser of Marion County on the grounds that it had not been properly authenticated and because it had not been provided to Petitioner seven days prior to hearing, as required by the Order of Pre-hearing Instructions.
Although ostensibly a public document, Exhibit R-1 cannot be said to be self-authenticating within the meaning of section 90.902, Florida Statutes. It bears no signature of any officer or employee of the Marion County Property Appraiser’s office. Nationwide Mut. Fire Ins. Co. v. Darragh, 95 So. 3d 897 (Fla. 5th DCA 2012)(Web-sites are not self-authenticating) (citing St. Luke's Cataract and Laser Inst., P.A. v. Sanderson, 2006 U.S. Dist. LEXIS 28873, 2006 WL 1320242 (M.D. Fla. Nov. 4, 2006). See also Armstrong v. State, 42 So. 3d 315 (Fla. 3d DCA,
2010)(bank statement downloaded from internet as exhibit in criminal trial was inadmissible hearsay when not authenticated or shown to come within hearsay exception).
The requirements of section 90.901, Florida Statutes, to authenticate a document are satisfied by evidence sufficient to support a finding that the document in question is what its proponent claims. Coday v. State, 946 So. 2d 988, 1000 (Fla. 2006).
Authentication or identification of evidence may include examination of its appearance, contents, substance, internal patterns, or other distinctive characteristics in conjunction with the circumstances. State v. Love, 691 So. 2d 620 (Fla. 5th DCA 1997).
The appearance of Exhibit R-1 suggests it is a printout from the Marion County Property Appraiser’s website.
It bears that title, reflects search options apparently allowing search of County records, contains information purporting to be assessment values by year for the land and improvements thereon, and references to book and page numbers identifying the location of legal instruments related to the parcel. It contains references to the street address, the names of Mr. and
Ms. Hopper, and a legal description of the property that matches that found on Exhibits P-1 and P-2. It contains the notation “Adverse Possession Claim” which is consistent with Request for
Admission number 5, propounded by Petitioner and admitted by Respondent on July 9, 2012, which states, “On or around January 31, 2011, Respondent filed an adverse possession claim
on the Hopper’s residence with the property appraiser’s office.”
Detective Myers testified that Exhibit R-1 looked like a printout from the website, although he could not “tell you 100 percent if this is the exact same document.”
The document was offered only as corroborating evidence of the fact that Respondent had filed an adverse possession claim against the Summerfield property, a fact conclusively established by responses to the Request for Admissions.
Moreover, section 120.569(2)(g) provides in part, “Irrelevant immaterial, or unduly repetitive evidence shall be excluded but all other evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs shall be admissible, whether or not such evidence would be admissible in a trial in the courts of Florida.” The strict requirements of authentication are somewhat relaxed in an administrative hearing for evidence which bears sufficient indicia of reliability, particularly when offered as proof of an uncontested fact.
Under these circumstances, the evidence was sufficient to support a finding that Exhibit R-1 is exactly what Respondent claimed it was, namely a printout of property records as reflected on the website of the Property Appraiser of Marion County.
Although not provided a copy of Exhibit R-1 seven days prior to hearing as required by the Order of Pre-hearing Instructions, Petitioner was in no way prejudiced. Petitioner had been in possession of Respondent’s admission as to the adverse possession filing almost three months prior to hearing.
While Exhibit R-1 is hearsay, and no evidence that it met any exception was introduced, hearsay is admissible in administrative hearings. Although insufficient standing alone to support a finding, it may be used to supplement or explain other competent evidence. L.G.H. v. Dep’t of Child. & Fam. Servs., 735 So. 2d 548 (Fla. 1st DCA 1999). It serves only that purpose here.
Section 943.13, Florida Statutes, establishes the minimum qualifications for certification of law enforcement officers in the State of Florida. Among those qualifications is the requirement that a law enforcement officer must possess good moral character, as determined by a background investigation under procedures established by the Commission.
Section 943.1395(7) provides that the definition of good moral character shall be adopted by rule and be established as a statewide standard.
The Department of Law Enforcement has adopted Florida Administrative Code Rule 11B-27.0011, entitled “Moral Character.” Subsection (4) of that rule provides in relevant part:
For the purposes of the Criminal Justice Standards and Training 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:
The perpetration by an officer of an act that would constitute any felony offense, whether criminally prosecuted or not.
Except as otherwise provided in Section 943.13(4), F.S., a plea of guilty or a verdict of guilty after a criminal trial for any of the following misdemeanor or criminal offenses, notwithstanding any suspension of sentence or withholding of adjudication, or the perpetration by an officer of an act that would constitute any of the following misdemeanor or criminal offenses whether criminally prosecuted or not:
1. Sections 316.193, 327.35, 414.39, 741.31,
784.011, 784.03, 784.047, 784.048, 784.05,
784.046(15), 790.01, 790.10, 790.15, 790.27,
794.027, 796.07, 800.02, 800.03, 806.101,
806.13, 810.08, 810.14, 810.145, 812.014,
812.015, 812.14, 817.235, 817.49, 817.563,
817.565, 817.567, 817.61, 817.64, 827.04,
828.12, 831.30, 831.31(1)(b), 832.05,
837.012, 837.05, 837.055, 837.06, 839.13,
839.20, 843.02, 843.03, 843.06, 843.085,
847.011, 856.021, 870.01, 893.13, 893.147,
914.22, 934.03, 944.35, 944.37, and 944.39, F.S.
The Administrative Complaint first alleges that Respondent failed to maintain good moral character as defined in rule 11B-27.0011(4)(a) and (b) in that he violated the provisions of sections 812.014(2)(c)1. Florida Statutes, or any lesser included offense.
Section 812.014(1)(a) defines the crime of theft.
Section 812.014(2)(c)1. provides that it is grand theft of the third degree and a felony of the third degree if the property stolen is valued at $300 or more, but less than $5000.
In order to prove that appellant committed theft, Petitioner is required to prove that appellant (1) knowingly,
obtained or endeavored to obtain, (3) the property of another, (4) with the intent to permanently or temporarily deprive the other person of the property. Jenkins v. State, 898 So. 2d 1134, 1135 (Fla. 1st DCA 2005).
Respondent admitted elements one and two. Other evidence also clearly and convincingly showed that Respondent knowingly took several items of tangible personal property that were in the house and placed them in a dumpster that he had arranged to be brought to the structure for the purpose of cleaning up.
The third element of theft requires that someone other than the defendant own the subject property. See R.C. v. State,
481 So. 2d 14, 15 (Fla. 1st DCA 1985); Foster v. State, 557 So.
2d 634, 636 (Fla. 3d DCA 1990). The evidence clearly and convincingly showed that the tangible personal property left in the residence belonged to the Hoppers.
Finally, Florida law requires that to prove the crime of theft, the State must establish that a defendant had the requisite criminal intent at the time of the taking. Kay v. State, 48 So. 3d 152, 153 (Fla. 1st DCA 2010); Redding v. State, 666 So. 2d 921, 922 (Fla. 1st DCA 1995).
The specific intent to steal is a necessary element of the crime of theft established in section 812.014, and the State bears the burden of establishing that stolen property was taken with this intent. State v. Allen, 362 So. 2d 10, 11 (Fla. 1978). In this case, while Respondent admitted he disposed of personal property of the Hoppers by placing it in the dumpster, he testified that he believed the property was essentially “trash” that had been abandoned by its owners.
In Shedd v. State, 350 So. 2d 1085, 1087 (Fla. 1st DCA 1977), the court construed a statutory provision relating to abandoned tangible personal property, noting:
“[T]he import of the statute is that the property is no longer that of any particular person or entity. Therefore, one who finds
such abandoned property and fails to report it, or who appropriates it wrongfully . .
. is not depriving any particular prior owner of any ownership, interest therein, or right of possession of any such property.”
The court reasoned that since the defendant had been charged with larceny, including the intent to deprive, he could only be convicted of larceny or lesser included offenses if the evidence showed that the last owner still claimed a right or interest in the property at the time appellant committed the crime.
In the instant case, it has already been determined that the property had not actually been abandoned by the Hoppers, therefore the third element was met. However, if Respondent legitimately, though incorrectly, believed the property had been abandoned, he would not have had the specific intent, required as the fourth element, to permanently or temporarily deprive another person of the property when he placed it in the dumpster. Rodriguez v. State, 396 So. 2d 798, 799 (Fla. 3d DCA 1981)(defendants' honest belief in right to property, even if mistaken, negated the specific intent which is indispensable element of theft).
Respondent’s testimony that he believed the personal property had been abandoned was credible and was consistent with his other actions taken with respect to the real property.
Petitioner proved the fair market value of the personal property involved by clear and convincing evidence. The Hoppers testified that the items had a fair market value at the time they were obtained by Respondent of between $500 and
$600.
Petitioner failed to meet its burden to prove by clear and convincing evidence that Respondent had the specific intent to deprive the Hoppers of the personal property which he threw away in the dumpster.
Petitioner failed to establish by clear and convincing evidence that Respondent perpetrated an act that constituted grand theft of the third degree and a felony of the third degree in violation of section 812.14(2)(c)1.
The Administrative Complaint next alleges that Respondent failed to maintain good moral character as defined in rule 11B-27.0011(4)(a) and (b) in that he violated the provisions of section 810.08(2)(a), or any lesser included offense.
Section 810.08(1) provides that whoever, without being authorized, licensed, or invited, willfully enters or remains in any structure or conveyance commits the offense of trespass in a structure or conveyance. Section 810.08(2)(a) provides that trespass in a structure or conveyance is a misdemeanor of the
second degree. Napier v. State, 468 So. 2d 446 (Fla. 1st DCA 1985).
The elements of trespass are (1) the willful entry or remaining, (2) in a structure or conveyance of another,
without being authorized, licensed or invited to enter.
§ 810.08; McKiver v. State, 55 So. 3d 646, 649 (Fla. 1st DCA
2011).
Unlike the specific intent required to commit larceny, only a general intent is required for criminal trespass. The term "willfully" as used to modify the word “entry” in the trespass statute merely means that the entry be intentionally, knowingly, and purposely done. Rozier v. State, 402 So. 2d 539, 542-543 (Fla. 5th DCA 1981).
Section 810.011(1), in pertinent part, defines “structure” to mean “a building of any kind, either temporary or permanent, which has a roof over it, together with the curtilage thereof.”
The evidence adduced at trial established all of the elements of trespass. Respondent admitted that on or about January 31, 2011, he entered the structure at 16040 S.E. 31st Court, Ocala, Florida. He intentionally, knowingly, and purposely entered the structure in an attempt to adversely possess the property. He changed the locks, painted the walls, and turned on the electricity. Mr. and Mrs. Hopper owned the
structure. The Hoppers did not know Respondent at the time he entered the structure and they had not authorized, licensed, or invited him to enter it.
Petitioner has established by clear and convincing evidence that Respondent perpetrated an act that constituted the second-degree misdemeanor of trespass in violation of section 810.08(2)(a). Under the statute, it is irrelevant whether Respondent was criminally prosecuted for this offense or not.
Under rule 11B-27.0011(4)(b)1., the perpetration of this act constitutes a failure to maintain good moral character.
Subsection 943.1395(7) prescribes the penalties that may be imposed by the Commission upon a finding that an officer has not maintained good moral character:
(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:
Revocation of certification.
Suspension of certification for a period not to exceed 2 years.
Placement on a probationary status for a period not to exceed 2 years, subject to terms and conditions imposed by the commission. Upon the violation of such terms and conditions, the commission may revoke certification or impose additional penalties as enumerated in this subsection.
Successful completion by the officer of any basic recruit, advanced, or career development training or such retraining deemed appropriate by the commission.
Issuance of a reprimand.
Subsection 943.1395(8) goes on to provide that the Commission shall establish disciplinary guidelines, as well as set forth aggravating and mitigating circumstances. It provides in part:
(8)(a) The commission shall, by rule, adopt disciplinary guidelines and procedures to administer the penalties provided in subsections (6) and (7). The commission may, by rule, prescribe penalties for certain offenses. The commission shall, by rule, set forth aggravating and mitigating circumstances to be considered when imposing the penalties provided in subsection (7).
(b)1. The disciplinary guidelines and prescribed penalties must be based upon the severity of specific offenses. The guidelines must provide reasonable and meaningful notice to officers and to the public of penalties that may be imposed for prohibited conduct. The penalties must be consistently applied by the commission.
The Commission has established disciplinary guidelines in rule 11B-27.005, which provide in pertinent part:
(5) When the Commission finds that a certified officer has committed an act that violates Section 943.13(7), F.S., the Commission shall issue a final order imposing penalties within the ranges
recommended in the following disciplinary guidelines:
* * *
(b) For the perpetration by the officer of an act that would constitute any of the misdemeanor offenses, pursuant to paragraph 11B-27.0011(4)(b), F.A.C., but where there was not a violation of Section 943.13(4), F.S., the action of the Commission shall be to impose a penalty ranging from probation of certification to suspension of certification.
While some misdemeanor violations are then listed with more specific recommended penalty ranges, there is no listing for trespass or section 810.08(2)(a), so only the general guideline “from probation of certification to suspension of certification” is applicable here.
None of the aggravating or mitigating circumstances delineated in rule 11B-27.005 are present here to an extent necessary to warrant deviation from the discretion already vested in the Commission within the penalty guidelines.
Upon consideration of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:
DONE AND ENTERED this 3rd day of December, 2012, in Tallahassee, Leon County, Florida.
F. SCOTT BOYD Administrative Law Judge
Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 2012.
1/ References to statutes and rules are to versions in effect in 2011, the time of the acts alleged to constitute a lack of good moral character, except as otherwise indicated.
Elissa R. Saavedra, Esquire
Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489
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.
