STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM R. MULDROW, JR.,

vs.

Petitioner,

Case No. 13-3223RX

DEPARTMENT OF CORRECTIONS,1/

Respondent.

/

FINAL ORDER

The final hearing in the case was held on September 25, 2013, in Tallahassee, Florida, before J. Lawrence Johnston, the Administrative Law Judge designated by the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: William R. Muldrow

3070 Waterford Drive

Tallahassee, Florida 32309-3332

For Respondent: Deborah B. Loucks, Esquire

Lawrence D. Harris, Jr., Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUE

The issue in this case is whether to grant the petition challenging the validity of Florida Administrative Code

Rule 33-302.111(2).

PRELIMINARY STATEMENT

On August 23, 2013, Petitioner filed a petition to invalidate Florida Administrative Code Rule 33-302.111 (the "Rule"). On September 10, 2013, Petitioner amended the petition. The final hearing was held on September 25, 2013. At the hearing, Petitioner presented the testimony of Stefanie Walters, Robert Woolfork, and Pamela McCoy. Petitioner's Exhibits 1 and 2 were received into evidence.

The Transcript of the final hearing was filed with DOAH on October 9, 2013. The parties filed proposed final orders, which

have been considered.

FINDINGS OF FACT

1. At the time of the final hearing, Petitioner was on probation and under the supervision of the Department of Corrections.

2. Petitioner obtained a form pro se motion for early termination of probation from the Leon County circuit court clerk's office. The form contained fields for Petitioner's probation officer and the assistant state attorney to object or not object to early termination and to comment.

3. Petitioner presented the form to his probation officer, who had her supervisor fill in the probation officer's field.

4. The supervisor indicated neither an objection nor lack of objection. She commented that she was leaving it to the

   
   

   court to determine if Petitioner had met the vehicle impoundment condition of his probation, but that Petitioner had met all other requirements to be considered for early termination of probation.

5. A hearing was scheduled on Petitioner's motion in June 2013. The judge notified the assistant state attorney

   assigned to the case and asked her to appear at the hearing. At the hearing, the assistant state attorney objected to early termination of Petitioner's probation. At some point in time, the assistant state attorney also checked the field on the form motion indicating her objection to early termination. The judge denied the motion.

6. Petitioner blames the denial of his motion on subsection (2) of rule 33-302.111, which states:

   1. Before a correctional probation officer considers recommending an offender for early termination of supervision, the following criteria shall be met:

      
      

      1. Completion of one-half of the supervision period;

         
         

      2. Payment in full of restitution, fines, and court costs;

         
         

      3. Cost of supervision is current;

         
         

      4. All special conditions of supervision are fulfilled;

         
         

      5. A Florida Crime Information Center/National Crime Information Center (FCIC/NCIC) records check reveals no new arrest during the course of supervision of

         
         

         which the sentencing or releasing authority has not been previously notified; and

         
         

      6. No violations of supervision are pending.

         
         

   2. In order for an officer to request an early termination of supervision from the sentencing or releasing authority, approval must be obtained from the officer's supervisor, the State Attorney's Office, and the victim, if the offense involved a victim. If the State Attorney's office denies the request, or the victim opposes the early termination, the department will not proceed with the early termination recommendation. The officer shall not disclose a victim's objection to the offender.

      
      

   3. The officer shall notify the offender of the judge's decision upon receipt of the judge's response. If the offender was adjudicated guilty, the officer shall review the restoration of civil rights process with the offender.

      
      

      He contends that subsection (2) of the rule is an invalid exercise of delegated legislative authority because it exceeds the statutory grant of rulemaking authority and enlarges, modifies, or contravenes the specific provisions of law implemented. See § 120.52(8)(b) & (c), Fla. Stat. (2013).

      Specifically, Petitioner contrasts the rule with section 948.04(3), Florida Statutes, which states:

      If the probationer has performed satisfactorily, has not been found in violation of any terms or conditions of supervision, and has met all financial sanctions imposed by the court, including, but not limited to, fines, court costs, and restitution, the Department of Corrections

      
      

      may recommend early termination of probation to the court at any time before the scheduled termination date.

      
      

      Although on the precise subject as the rule, section 948.03(4) is not cited in the rule as either the rulemaking authority or the law implemented. Instead, the rule cites section 944.09, Florida Statutes, for both.

      CONCLUSIONS OF LAW

      
      

7. Section 120.56 allows any person "substantially affected" by a rule to initiate a challenge to its validity. "The administrative law judge may declare all or part of a rule invalid. The rule or part thereof declared invalid shall become void when the time for filing an appeal expires."

   § 120.56(3)(b), Fla. Stat.

   
   

8. Petitioner has the burden of proving standing. See

   
   

   § 120.56(1)(b), Fla. Stat. To establish standing, Petitioner must show (1) that the challenged rule will result in a real and immediate injury in fact, and (2) that the alleged injury is within the zone of interest to be protected or regulated. See, e.g., Jacoby v. Fla. Bd. of Med., 917 So. 2d 358, 360 (Fla. 1st DCA 2005); Lanoue v. Fla. Dep't of Law Enf., 751 So. 2d 94, 96 (Fla. 1st DCA 1999). To be considered real and immediate, the alleged injury cannot be based on speculation or conjecture.

   Lanoue, supra, at 97; Ward v. Bd. of Trs. of the Int. Imp. Trust

   
   

   Fund, 651 So. 2d 1236, 1237 (Fla. 4th DCA 1995).

   
   

9. Petitioner's standing argument is, essentially, that he still is on probation because of subsection (2) of the rule. To the contrary, there was no evidence that any probation officer was inclined to request early termination of Petitioner's probation, but for the rule. There also was no evidence that any probation officer is likely to request early termination of Petitioner's probation at any time in the future. Even if a probation officer were inclined to request early termination of Petitioner's probation, it is a matter of pure speculation and conjecture that the judge would grant such a request. Consequently, Petitioner did not prove a real and immediate injury in fact.

10. In addition, the statutes governing probation do not appear to confer on probationers a cognizable interest in early termination of probation. Under section 944.012(6)(e), the legislative intent is to "provide intensive and meaningful supervision for those on probation so that the condition or situation which caused the person to commit the crime is corrected." Under section 948.04, Respondent is given discretion to terminate probation. It does not give probationers a legally cognizable right to early termination or to compel Respondent to request early termination of probation.

11. For these reasons, Petitioner did not prove his standing to bring his rule challenge.

    
    

12. At the heart of Petitioner's complaint is his apparent belief that the assistant state attorney would not have been notified of his motion for early termination of probation, but for the challenged rule. To the contrary, section 27.02(1), Florida Statutes, required the state attorney to appear and represent the state on Petitioner's motion for early termination of probation.

13. Since Petitioner did not prove standing, there is no jurisdiction to consider the remainder of Petitioner's argument that the challenged rule is an invalid exercise of delegated legislative authority. See Abbott Labs. v. Mylan Pharm., Inc., 15 So. 3d 642, 651 n.2 (Fla. 1st DCA 2009).

DISPOSITION

Based on the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that Petitioner's rule challenge is dismissed.

DONE AND ORDERED this 29th day of October, 2013, in Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 2013.

ENDNOTE

1/ The mistake in the caption of the initial petition is being corrected in this Final Order.

COPIES FURNISHED:

Ken Plante, Coordinator

Joint Administrative Procedure Committee Room 680, Pepper Building

111 West Madison Street Tallahassee, Florida 32399-1400

Liz Cloud, Program Administrator Administrative Code

Department of State

R.A. Gray Building, Suite 101 Tallahassee, Florida 32399-0250

Michael D. Crews, Secretary Department of Corrections

501 South Calhoun Street Tallahassee, Florida 32399-2500

Dorothy Ridgway, Deputy General Counsel Department of Corrections

501 South Calhoun Street Tallahassee, Florida 32399-2500

Jennifer Parker, General Counsel Department of Corrections

501 South Calhoun Street Tallahassee, Florida 32399-2500

Deborah B. Loucks, Esquire Lawrence D. Harris, Jr., Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050

William R. Muldrow 3070 Waterford Drive

Tallahassee, Florida 32309-3332

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 the original notice of administrative appeal with the agency clerk of the Division of Administrative Hearings within

30 days of rendition of the order to be reviewed, and a copy of the notice, accompanied by any filing fees prescribed by law, with the clerk of the District Court of Appeal in the appellate district where the agency maintains its headquarters or where a party resides or as otherwise provided by law.

Docket for Case No: 13-003223RX

Orders for Case No: 13-003223RX