STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DONALD ALVIN JONES, )

)

Petitioner, )

)

vs. ) CASE NO. 80-2331

) STATE OF FLORIDA, DEPARTMENT OF ) HEALTH AND REHABILITATIVE )

SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted on February 4, 1981, at Florida State Hospital, Chattahoochee, Florida.

APPEARANCES

For Petitioner: Claude Arrington, Esquire

Assistant Public Defender Second Judicial Circuit

211 East Jefferson Street Quincy, Florida 32351

For Respondent: Gerry L. Clark, Esquire

Florida State Hospital Chattahoochee, Florida 32324

ISSUE

The issue presented by this case concerns the question of whether the Respondent, State of Florida, Department of Health and Rehabilitative Services, has exhausted all treatment for the Petitioner, Donald Alvin Jones, through available sex offender programs administered by the Respondent. See Section 917.20, Florida Statutes (1977).

FINDINGS OF FACT

1. The Petitioner submitted a "Petition for Administrative Determination" to the State of Florida, Department of Health and Rehabilitative Services. In turn, the Department requested the Division of Administrative Hearings to conduct a formal hearing to consider the matters set forth in the petition and this request was received by the Division of Administrative Hearings on December 15, 1980. A final hearing in this cause was scheduled for January 30, 1981, but was not conducted until February 4, 1901, so that Petitioner might secure representation.

   
   

2. In the course of the final hearing the Petitioner testified in his own behalf and called as witness Michael Denny, Staff Psychologist in the forensic

   service at the Florida State Hospital. The Respondent called Robert H. Alcorn, Jr., Director of the Mentally Disordered Sex Offender Program at the Florida State Hospital as its witness. Respondent's Exhibit No. 1 was admitted into evidence.

   
   

3. At all times pertinent to this proceeding, the Petitioner has been in the custody of the Respondent in keeping with the order of the Circuit Court of Duval County, Florida, and the authority of Chapter 917, Florida Statutes, (1977). Petitioner presently resides in the Florida State Hospital at Chattahoochee, Florida, where he is undergoing treatment in a hospital program for the benefit of mentally disordered sex offenders. This program and similar programs in other institutions administered by the Respondent require a high degree of motivation on the part of the patient in order to achieve success. Although the Petitioner has made progress in the course of his stay, the Respondent has made a preliminary determination that it has exhausted all appropriate treatment for the Petitioner through the program in which he is enrolled and has additionally concluded that similar programs within the State of Florida do not offer other opportunities for progress. In that respect, theRespondent has exhausted treatment in the affiliated programs. Indeed, the Petitioner participated in the program at the North Florida Evaluation and Treatment Center, a sex offender program. This treatment commenced in October, 1977, and lasted for a period of approximately six months, after which time he was returned to the committing court and later placed in the Florida State Hospital forensic unit.

   
   

4. The primary program for mentally disordered sex offenders in the Florida State Hospital is group therapy. The Petitioner has participated in group therapy sessions and beginning in January, 1980, was assigned to intensive assertion training. In this connection, his group therapy sessions now involve a group which is more confrontation oriented. In the course of the group therapy sessions he has only personally discussed himself one time in his most recent group and that participation discussion occurred on February 3, 1981.

   The discussion related to the Petitioner's interest in a talent show at the hospital.

   
   

5. The Petitioner has learned about his childhood experience while in the program but he will not relate his sexual history or discuss his daily activities. The patient carries a diagnosis of inadequate personality and sexual deviation, namely pedophilia and has subnormal intelligence. His behavior is guarded and evasive and on balance his cooperation and participation is superficial. In the last six or eight months of his treatment, the Petitioner has not made satisfactory progress. The progress that has been achieved in the program relates to the patient's willingness to deal with others more readily, thereby getting along with others and creating a better feeling about himself. The patient has not broken the rules of the Forensic Unit lately but when pushed by others will become angry.

   
   

6. The Petitioner has been involved in wood and musictherapy, is a member of the Jaycees and attends dances and dance classes.

   
   

7. In January, 1980, the Petitioner was presented to a staff disposition conference consisting of members of the treatment team in the program for mentally disordered sex offenders and it was determined that the patient should be retained for a period of time. Again, in September, 1980, the patient was presented to the conference and it was determined that the hospital had exhausted the treatment possibilities for the Petitioner. Through a staff conference of the heads of the various sex offender programs in the Department's

   overall system held in October, 1980, it was the unanimous opinion of those members that treatment possibilities for the patient had been exhausted.

   
   

8. Although the Petitioner continues to express some motivation about participation in the sex offender program and feels that he needs more assistance, needs a structured environment, further participation in a sex offender program offered by the Respondent would not be sufficiently beneficial to cause the Petitioner to remain in the program.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in keeping with Section 917.20, Florida Statutes (1977), and Section 917.011, Florida Statutes (1979).

   
   

10. Ultimately questions of whether the Petitioner is properly classified as a mentally disordered sex offender, and the disposition to be made with respect to the Petitioner after he has received treatment as a mentally disordered sex offender are questions to be determined by the committing court; however, preliminary to that determination by the court is a question of whether the Respondent has exhausted all appropriate treatment of this patient (see statutory references set forth in paragraph (1) to these conclusions of law). This hearing was designed to address the question of exhaustion of treatment and once the Department has made the final determination, the committing court may pursue the alternatives available to it as set forth in Subsection 917.011(1), Florida Statutes (1979). See also Cummings v. State, 379 So.2d 988 (Fla. 1st DCA 1980).

    
    

11. The decision of whether the Respondent has exhausted all available treatment is one affecting the substantial interest of the Petitioner, within the meaning of Subsection 120.57(1), Florida Statutes, and this administrative hearing was conducted in keeping with the terms and conditions set forth in Chapter 120, Florida Statutes, which calls for determination of the issue of exhaustion of treatment by the executive branch of government as opposed to a judicial determination.

    
    

12. After a full consideration of the facts found herein, it is concluded as a matter of law that the Respondent has exhausted all appropriate treatment for the Petitioner. Therefore, the Petitioner should be returned to court with accompanying report as set forth in Subsection 917.011 (1), Florida Statutes (1079)

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusion of Law, it is hereby, RECOMMENDED

That a final order be entered by the Department of Health and Rehabilitative Services finding that it has exhausted all appropriate treatment for Donald Alvin Jones and that said Donald Alvin Jones be returned to the committing court for further proceedings.

DONE and ENTERED this 27th day of February, 1981, in Tallahassee, Florida.

CHARLES C. ADAMS

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 27th day of February, 1981.

COPIES FURNISHED:

Claude Arrington, Esquire Assistant Public Defender Second Judicial Circuit

211 East Jefferson Street Quincy, Florida 32351

Gerry L. Clark, Esquire Florida State Hospital Chattahoochee, Florida 32324

Docket for Case No: 80-002331

Orders for Case No: 80-002331