STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLES E. ROBERTS, JR., )

)

Petitioner, )

)

vs. ) CASE NO. 81-295

)

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

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before William E. Williams, a duly designated Hearing Officer of the Division of Administrative Hearings, on April 10, 1981, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Claude Arrington, Esquire

Assistant Public Defender

211 East Jefferson Street Quincy, Florida 32351

For Respondent: Stewart E. Parsons, Esquire

Florida State Hospital Chattahoochee, Florida 32324

ISSUE

This cause came on for consideration before the Hearing Officer on Respondent's motion to dismiss this proceeding for lack of jurisdiction. Specifically, Respondent asserts that Petitioner lacks standing to maintain this proceeding pursuant to Section 120.57(1), Florida Statutes, asserting that Petitioner is net a "party" within the meaning of Section 120.52 (10) Id), Florida Statutes.

FINDINGS OF FACT

1. On May 28, 1980, Petitioner, Charles E. Roberts, Jr., pleaded guilty to a lewd and lascivious act in violation of Section 800.04, Florida Statutes. His conviction occurred in Case No. 79-9480B, in the Circuit Court of the Thirteenth Judicial Circuit, in and for Hillsborough County, Florida. Thereafter, on May 30, 1980, Petitioner was adjudged guilty and sentenced to five years in the State prison system.

2. Subsequently, Petitioner, in keeping with the terms and conditions of Section 917.012, Florida Statutes, was evaluated by the State of Florida, Department of Corrections, and the State of Florida, Department of Health and Rehabilitative Services, and was placed in the mentally disordered sex offender program at Florida State Hospital, Chattahoochee, Florida, by transfer from his confinement in the prison system to Florida State Hospital. At the time of the hearing in this cause, Petitioner was in residence at Florida State Hospital awaiting transfer back to the State prison system. By this proceeding, Petitioner seeks to contest Respondent's determination that all appropriate treatment modes for Petitioner have been exhausted.

   
   

   CONCLUSIONS OF LAW

   
   

3. For purposes of this proceeding, Petitioner is a "prisoner" as defined in Section 944.02(5), Florida Statutes.

   
   

4. Section 120.52(10)(d), Florida Statutes, provides, in part, that " . .

   . [p]risoners as defined in Section 944.02(5) shall not be considered parties for the purpose of obtaining proceedings under Section 120.54(16) or Section 120.57."

   
   

5. In light of the fact that the petition in this cause was filed pursuant to Section 120.57(1), Florida Statutes, and further, in light of the Legislature's determination that "prisoners" are not "parties" so as to enable them to maintain such actions, it is

RECOMMENDED:

That the Respondent, State of Florida, Department of Health and Rehabilitative Services, enter a Final Order dismissing this cause with prejudice for lack of jurisdiction.

DONE AND ENTERED this 29th day of May, 1981, in Tallahassee, Florida.

WILLIAM E. WILLIAMS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 1981.

COPIES FURNISHED:

Claude Arrington, Esquire Assistant Public Defender

211 E. Jefferson Street Quincy, Florida 32351

Stewart E. Parsons, Esquire Florida State Hospital Chattahoochee, Florida 32324

Docket for Case No: 81-000295

Orders for Case No: 81-000295