STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAVID W. COCHRAN, )

)

Petitioner, )

)

vs. ) CASE NO. 81-411

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

SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings. This hearing was conducted in the Forensic Services Conference Room, Florida State Hospital, Chattahoochee, Florida, on April 2, 1981.

APPEARANCES

For Petitioner: Vaughn C. Brennan, Esquire

1040 McDonald Street

Lakeland, Florida 33801 Post Office Box 1667

Eaton Park, Florida 33840

For Respondent: Stewart E. Parsons, Esquire

Florida State Hospital Chattahoochee, Florida 32324

ISSUE

This order concerns the Respondent's motion to dismiss this action with prejudice premised upon lack of jurisdiction of this forum specifically, it is alleged that the Petitioner does not have standing to bring an action under Section 120.57, Florida Statutes, in view of the fact that he is not considered to be a party within the meaning of Subsection 120.52(10)(d) Florida Statutes. The Respondent also asserts that the Petitioner has no legally recognizable substantial interest to be determined in this action, as would be required to establish standing to proceed under Section 120.57, Florida Statutes.

FINDINGS OF FACT

1. On April 17, 1980, the Petitioner, David W. Cochran, was convicted and sentenced for the offense of lewd assault on a child, a violation of Section 800.04, Florida Statutes. This conviction and sentence was entered by the Circuit Court, Criminal Division, Polk County, Florida, in Case No. CF79-1761. The Petitioner was given a ten year sentence in the State prison for that

   offense, with the recommendation that the Petitioner be treated as a mentally disordered sex offender.

   
   

2. In keeping with the terms and conditions of Section 917.012, Florida Statutes (1979), the Petitioner 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 the Florida State Hospital, Chattahoochee, Florida, by process of transfer from his confinement in the prison to the stated placement as an offender. At the time of the motion hearing in this cause, the Petitioner was residing at Florida State Hospital, Chattahoochee, Florida, in the sex offender program, awaiting transport by the State of Florida, Department of Corrections, back to an appropriate corrections facility, it having been determined by the State of Florida, Department of Health and Rehabilitative Services that it had exhausted all appropriate treatment for the said offender.

   
   

3. The motion to dismiss had been occasioned in face of a petition for administrative determination which had been filed by the Petitioner with the Respondent and referred by the Respondent to the Division of Administrative Hearings for disposition. That petition calls for a determination on the question of exhaustion of treatment of the Petitioner in the aforementioned sex offender program and as stated in the Issues provision of this Recommended Order, the Respondent took the position that the hearing which the Petitioner requested pursuant to Subsection 120.57(1), Florida Statutes, could not be granted to the Petitioner for the reasons set forth in the issues statement.

   
   

   CONCLUSIONS OF LAW

   
   

4. On April 17, 1980, the Petitioner, David W. Cochran, was convicted of lewd assault on a child, a violation of Section 800.04, Florida Statutes. This conviction occurred in Polk County, Florida, and a sentence was entered by the Polk County Circuit Court, Criminal Division, in Case No. CF79-1761, which placed the Petitioner in the State prison for a period of ten years, with a further recommendation that he be treated as a mentally disordered sex offender. By his conviction and sentence, the Petitioner became a prisoner within the meaning of Subsection 944.02(5), Florida Statutes. 1/

   
   

5. Following his conviction and sentence, he was turned over to the custody of the State of Florida, Department of Corrections, and the State of Florida, Department of Corrections and State of Florida, Department of Health and Rehabilitative Services, pursuant to Subsection 917.012(1)(b) and (c) Florida Statutes (1979), 2/ and pursuant to Subsection 945.12(6)(a), Florida Statutes, 3/ identified the Petitioner as a sex offender and transferred the Petitioner to the Florida State Hospital for evaluation and possible treatment as contemplated by Subsection 917.012(1)(d) , Florida Statutes. 4/

   
   

6. While the State of Florida, Department of Health and Rehabilitative Services, pursuant to Subsection 917.012(1)(g), Florida Statutes (1979), 5/ had the power to determine the proper facility to place the Petitioner in to receive care, treatment and rehabilitation for his condition and the proper treatment modality to be utilized; Subsection 917.012(1)(e), Florida Statutes (1979) , would not allow the Petitioner's participation in the community furlough or work release programs while in the formal treatment program of the Department of Health and Rehabilitative Services, notwithstanding the right under this immediate provision to set out the manner and sequence of treatment for the Petitioner based upon his length of sentence and his presumptive parole eligibility date. It can be seen through these statutory references that the

   Petitioner was still considered to be a prisoner within the meaning of Subsection 944.02 (5), Florida Statutes, in the charge of the State of Florida, Department of Corrections for all purposes other than care and treatment of his problem as a mentally disordered sex offender. This perception is borne out by Subsection 917.012(1)(d) , Florida Statutes (1979), which requires the State of Florida, Department of Health and Rehabilitative Services to submit a written report to the Department of Corrections once it is determined that the offender does not meet the definition of mentally disordered sex offender or that the treatment program to which he had been assigned had exhausted all appropriate treatment for him and beyond this report, the Department of Corrections, in pursuing their responsibility, would arrange for the immediate transportation of the offender to an appropriate corrections facility. In this instance, the Petitioner has been treated, and at this point, it has been determined that the Department of Health and Rehabilitative Services has exhausted all appropriate treatment for him as a sex offender and has now called upon the Department of Corrections to transport him back to an appropriate corrections facility.

   
   

7. Ultimately, this analysis leads to the conclusion that the Petitioner was a prisoner within the meaning of Subsection 84 2(5), Florida Statutes, from the moment of his conviction and sentence and remained so up to and through the time of the hearing on the motion in this case. As a consequence, he lacks the party status necessary to bring an action pursuant to Subsection 120.57(1), Florida Statutes, which action would attack the determination by the State of Florida, Department of Health and Rehabilitative Services to the effect that it has exhausted all appropriate treatment for his problem as a mentally disordered sex offender. The determination, lack of party status is grounded upon a reading of Subsection 120.52(10)(d), Florida Statutes, which states " . . . Prisoners as defined in s. 944.02(5) shall not be considered parties for the purposes of obtaining proceedings under s. 120.54(16) or s. 120.57, . . ."

   In the absence of party status, the Petitioner, a prisoner, may not pursue his present claim before this forum.

   
   

8. It is not necessary to address the second contention of the Respondent offered through his motion to dismiss dealing with assertion that the Petitioner lacks standing to pursue the action in view of the absence of a legally recognizable substantial interest within the meaning of Subsection 120.57 (1), Florida Statutes. It is, therefore,

RECOMMENDED:

That the Respondent, State of Florida, Department of Health and Rehabilitative Services' motion to dismiss for lack of jurisdiction be granted and that the matter be dismissed with prejudice.

DONE and ENTERED this 6th day of April, 1981, in Tallahassee, Florida.

CHARLES C. ADAMS, 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 6th day of April, 1981.

ENDNOTES

1/ (5) "Prisoner" means any person who is under arrest and in the lawful custody of any law enforcement official, or any person convicted and sentenced by any court and committed to any municipal or county jail or state prison, prison farm, or penitentiary, or to the custody of the department, as provided by law.

2/ (b) The Department of Corrections, jointly with the Department of Health and Rehabilitative Services, shall by rule establish procedures to identify those offenders who have been sentenced for the commission of a crime involving a sex offense, who are not psychotic, and who suffer from a psychosexual disorder, 1/ but are competent and amenable to treatment. From such group of offenders, the Department of Corrections and the Department of Health and Rehabilitative Services, jointly, shall also identify those offenders who may be treated by the Department of Corrections and those offenders who require the specialized services of the Department of Health and Rehabilitative Services, using professional psychiatric and psychological teams of the respective agencies.

(c) Each offender who is identified as needing the specialized services of the Department of Health and Rehabilitative Services shall be evaluated at a Department of Corrections facility end may be transferred to the Department of Health and Rehabilitative Services pursuant to the provisions of s. 945.12.

3/ (a) A prisoner who has been determined by the Department of Health and Rehabilitative Services and the Department of Corrections to be amenable to rehabilitative treatment for sexual deviation, and who has voluntarily agreed to participate in such rehabilitative treatment, may be transferred to the Department of Health and Rehabilitative Services provided that appropriate bed space is available.

4/ (d) An offender transferred from the Department of Corrections to the Department of Health and Rehabilitative Services under s. 945.12 shall be evaluated by the treatment facility during the first 90 days after admission as to his amenability to treatment. If the Department of Health and Rehabilitative Services determines at any time that the offender does not meet the definition of an offender identified in paragraph (b), or that the treatment program to which the offender was assigned by the department has exhausted all appropriate treatment for the offender, a written report to that effect shall be furnished by the Department of Health and Rehabilitative Services to the Department of Corrections, which shall be responsible for the immediate transportation of the offender to an appropriate corrections facility.

5/ (q) The Department of Health and Rehabilitative Services shall determine which facility shall provide necessary care, treatment and rehabilitation for an offender committed to the department under this act. Decisions on treatment modalities for all offenders committed or transferred to the Department of Health and Rehabilitative Services under this act shall be made by the Department of Health and Rehabilitative Services.

6/ (e) The Department of Health and Rehabilitative Services shall determine, for each offender transferred pursuant to paragraph (c), the manner and sequence of treatment based on his length of sentence and his presumptive parole eligibility date; however, no such offender shall participate in a community furlough or work release program while he is in a formal treatment program of the department.

COPIES FURNISHED:

Vaughn C. Brennan, Esquire 1040 McDonald Street

Lakeland, Florida 33801 Post Office Box 1667

Eaton Park, Florida 33840

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

Docket for Case No: 81-000411

Orders for Case No: 81-000411