STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SCHOOL BOARD OF BROWARD COUNTY, )
)
Petitioner, )
)
vs. ) CASE NO. 84-2944
)
KATHLEEN ROLLINS SHUMNEY, )
)
Respondent. )
)
RECOMMENDED ORDER
Upon due notice and pursuant to a stipulated date for formal hearings this cause came on for formal hearing before Ella Jane P. Davis the undersigned duly appointed Hearing Officer of the Division of Administrative Hearings on June 17, 1985, in Pompano Beach Florida.
APPEARANCES
For Petitioner: Philip J. Montane, Jr., Esquire
1500 East Atlantic Boulevard Pompano Beach, Florida 33060
For Respondent: Robert Heaton, Jr., Esquire
2734 East Oakland Park Boulevard Suite 200
Fort Lauderdale, Florida 33312 ISSUE
Whether Respondent Kathleen Rollins Shumney should be terminated from her employment as a teacher on continuing contract with the School Board of Broward County, Florida upon grounds of unsatisfactory performance, misconduct in officer and/or immorality as alleged in a July 20, 1984, four count Petition for Dismissal.
BACKGROUND AND PROCEDURAL HISTORY
This case has had an extensive and varied procedural history upon which a number of interlocutory procedural orders have been entered both prior to and subsequent to the formal hearing herein. It is not now necessary to retread old ground by summarizing those orders. The single order of November 18, 1985, was entered in the instant case of DOAH Case No. 84-2944, and in DOAH Case Nos. 85- 2467D and 85-2735. All of these cases involved the same Respondent. By Final Order of the Educational Practices Commission signed December 13, 1985, and filed December 16, 1985, referenced as Cases 85-2467D and 85-2735, Respondents teaching certificate was permanently revoked. The period for appeal of that final order has not yet elapsed.
At formal hearing in the instant separate case, DOAH Case No. 84-2944, Petitioner presented the oral testimony of Ronald Wright, Debra Pollack, Edward
Wolff and Linda Marable, and had admitted 6 Exhibits numbered Petitioner's 1- 6-and 8. Petitioner's 5 is a Composite Exhibit of eight parts and there is no Petitioner's 7. Petitioner's 4, the teaching contract; was not transmitted by the court reporter but both parties have stipulated orally by telephone that this Recommended Order may be entered without it. Respondent called no witnesses but joined Petitioner in having admitted Joint Exhibit 1, the December 4, 1984 deposition of Respondent.
Transcript of the June 17, 1985 proceedings were filed with the Division of Administrative Hearings by Petitioner on July 8, 1985.
The parties stipulated to 30 days from date of filing of the transcript for filing of their proposed findings of fact and conclusions of law, thereby waiving 30 days for entry of this Recommended Order. Petitioner filed its proposals August 9, 1985 which have been considered in entry of this Recommended Order, and each proposed finding of fact is ruled upon in the Appendix hereto.
Despite an extension of time to do ; Respondent has filed no proposals. Even after the time for such late filing had run without Respondent filing any proposals, Respondent's Attorney was advised in the course of a subsequent telephonic conference call motion hearing that the undersigned encouraged late filing of proposals subject to formal written objections by Petitioner. Still, Respondent filed no proposals and her opportunity to do so is accordingly deemed waived.
FINDINGS OF FACTS
Respondent is 37 years old. At all times material, she held a continuing contract of employment with the Broward County, Florida School Board. She has been a teacher for fourteen years and has been training in psychology to better her teaching skills and to become a counselor. At all times materials she was assigned by Petitioner School Board as a third grade teacher at Wilton Manors Elementary School.
Respondent remained a third grade teacher on continuing contract until she was suspended without pay from her duties at the close of the workday on April 14, 1984.
Effective February 2, 1984, Respondent entered upon formal disability leave with full approval of her principal and the Petitioner School Board. Representations by Petitioner's Counsel that the foregoing problems and disability leave was drug related is not evidence and there is no competent substantial evidence admitted at formal hearing to establish a relationship between Respondent's February 2, 1984 request for disability leave and drug dependency. Respondent's testimony by way of deposition is that she sought disability leave for an anxiety problem. A medical report attached to this deposition reveals that she was hospitalized for depressive reaction from February IS to February 19, 1984. Respondent had previously received therapy in connection with a divorce in 1979.
On or about March 2; 1984, Respondent was living at 1421 South Ocean Boulevard Apartment 406, in Pompano Beach, Florida. She shared this apartment from 1983 until that date with Tony Trevathan and her brother. The apartment lease was not in her name. Respondent knew at least two other people who had keys to the apartment besides herself. She also felt the manager, the manager's wife, and various repairmen had had keys.
Edward C. Wolff, a police officer for the City of Pompano Beach, was working with officer Canner during the night shift of March 2, 1984, and was called to the residence of the Respondent on that evening with reference to a disturbance call.
At approximately 1:30 a.m., the police officers arrived in the lobby of Respondent's apartment complex, and came into contact with Mr. Trevathan. He identified himself as one of the people they were there to see, so Officer Canner talked to him in the lobby while Officer Wolff went up to the apartment.
When Officer Wolff knocked on the apartment door, he identified himself as a police officer of the City of Pompano Beach and stated that he was there for a disturbance call. At first Respondent questioned his identity but after verification from the Pompano Beach Police Department she invited Officer Wolff into the apartment to talk about the problem.
Respondent directed Officer Wolff to have a seat at a table located in a joint living and family room, and she sat directly across from him. While Officer Wolff was talking to Respondent he observed a clear plastic baggie on the table about one and a half feet directly in front of him. Inside the bag was a large number of white tablets. Based on his training, education, and experience as a police officer with specialized training in narcotics; he surmised that the tablets were methaqualone tablets which a later laboratory report confirmed to be the case.
After Officer Wolff saw the bag with the methaqualone tablets he continued to seek information related to the disturbance call. The Respondent appeared to him to be impaired. She was unsteady on her feet and began a second sentence before finishing a previous sentence. Officer Wolff noted that there was no smell of an alcohol beverage on her breath. He felt her behavior was consistent with people who are taking cocaine or methaqualones.
Officer Wolff looked at the tablets and noticed that they were marked "Lemon 714," which in his experience is a common designator for methaqualone tablets. At that point he took physical control of the tablets and advised Respondent that she was being detained for further investigation due to the narcotics he found. He radioed Officer Canner to tell him to bring Mr. Trevathan upstairs and informed him of the possible narcotics violations.
Officer Wolff counted a total of sixty-seven (67) tablets in the baggie. From where he stood, officer Wolff could see clearly into the kitchen area. He saw a brown woman's shoulder bag on the counter. He testified that there were several white plastic baggies sticking out of the bag. As Officer Wolff approached the bag to look closer and determine what the white powder was, Respondent exclaimed, That's my bag". Officer Wolff removed the baggies from the purse. There were a total of eleven baggies which appeared to be filled with cocaine, which a later laboratory report confirmed to be the case.
Respondent maintained that the brown bag was not a shoulder bag but a molded bag which she had thrown in the kitchen trash can earlier in the day. She stated that when she discarded it the bag was empty; but there is apparently no dispute concerning what was found in it by Officer Wolff.
On top of a stove, approximately three to four feet away from the purse Officer Wolff found a couple of other clear plastic baggies that had white powdery residue which later tested as cocaine. On top of a dresser in the
bedrooms Officer Wolff saw a single tablet which appeared to be the same colors shape, and form of methaqualone tablets that he had already taken. That tablet tested as methaqualone. Respondent admits that this had been her bedroom up until the day in question but that she was in the process of moving out throughout the day. She testified she had not cooked in the kitchen for a week and had slept in the living room for a week on the sofa. She had packed clothes in the bedroom earlier in the day.
Officer Wolff observed the make-up mirror in the bathroom area that had a Publix check cashing card along with some white powder on it. He took the mirror and saw that the Publix check cashing card was in the name of Kathy R. Shumney. This powder subsequently tested as cocaine.
Officer Wolff asked Mr. Trevathan if he was aware of the drugs and the response was in the affirmative. He did not ask Respondent and Mr. Trevathan's statement is not construed as an admission against interest by her. He then arrested Respondent and Mr. Trevathan for possession of narcotics i.e. controlled substances.
Detective Deborah Pollack, the Identification Technician for the Pompano Beach Police Department, arrived at the scene in response to Wolff's radio call and was instructed to take pictures throughout the apartment. She took a total of eight pictures (Petitioner's Composite 5A through H) which portrayed the substances in their places of discovery the two persons arrested, and the general condition of the apartment. Officer Pollack testified that she arrived on the scene at approximately 1:41 a.m. Except that the first baggie had been replaced on the table the photographs substantially support Officer Wolff's testimony.
Respondent testified that she had packed most of her belongings to leave the apartment for good earlier in the day. She then went to the Galleria Mall with Tony Trevathan to buy clothes. She had been in the apartment about 15 minutes when Officer Wolff arrived. At that time Trevathan was, so far as Respondent knew, removing packages of purchases from his car. The photographs by Officer Pollack confirmed that packing, unpacking, or heavy cleaning had been going on. On March 30, 1984, Respondent presented herself to Dr. Daniel H. Goldwin, M.D. Between that day and her release on April 4, 1984 she underwent urinalysis and a number of other tests which resulted in a diagnosis of anxiety, depressions and increased alcohol abuse, but she tested as having no narcotics in her system. In giving her medical history to this doctors Respondent admitted trying cocaine on occasion, but saying it made her nervous. These tests were approximately 30 days after the arrest for drug possession.
Linda Marable has been Principal at Wilton Manors Elementary School for five years and supervised Respondent during the 1983-1984 school term. It is not clear whether she had observed or supervised Respondent before that term. She testified that in her opinion, Respondent's effectiveness as a teacher would be impaired as a result of the charges lodged against her because the community and faculty are aware of the drug charges lodged against Respondent due to newspaper reports. Some children in the school also had mentioned it to Principal Marable. Ronald Steven Wright, Petitioner's Director of Non- instructional Personnel, also testified that Respondent's effectiveness was impaired but Mr. Wright's opinion, backed by no specific predicate of what opportunity he has had to examine the knowledge and the reactions of others in the educational community, is not of significant weight. Both Mr. Wright and
Ms. Marable conceded that innocence of the charges would affect their opinions. Neither educator felt arrest without proof of wrongdoing should be the controlling factor in effectiveness. However, Ms. Marable felt the mere notoriety of the arrest would be significant on a case by case basis.
On April 24, 1984, Linda Kay Marable, Principal of Wilton Manors Elementary School, reported to Petitioner's "Personnel Services" that four months before, on 11/01/83 and 11/02/83, Respondent was tardy in arriving at school. How late after 8:00 a.m. Respondent arrived was not established by any competent evidence in the record. She also reported on that date that on 11/29/83 Respondent was absent and did not call for a substitute until 7:45 a.m., which was considered "late" pursuant to establishment of the official school day. In connection with the foregoing Respondent had received a memorandum dated November 30, 1983 advising her that further such situations would result in formal charges of dismissal for "willful neglect of duties". Principal Marable also reported on April 24, 1984, that on some occasion not specified Respondent had been late in handing in lesson plans that her students' papers were not graded, that the MBS test was not up-to-dated and that Respondent had an above average number of problems with classroom control. The record reveals no specificity of date or incident being proved-up for these problems. The principal further reported to "Personnel Services" that Respondent was tardy in arriving at school after 8:00 a.m., on 2/02/84, but how late Respondent arrived was never established.
Until Respondent was subsequently arrested on March 2, 1984 for drug possession, none of these earlier problems were reported to Petitioner. The April 24, 1984, Memorandum of Report mentioned these incidents and drug charges together and recommended either not rehiring Respondent for the next term (1984- 1985) or returning her to annual contract. Respondent has never been formally charged with unsatisfactory performance except as it might relate to her arrest on March 2, 1984.
Petitioner has urged a number of proposed findings of fact based upon a plea to certain criminal charges lodged against Respondent arising out of the March 2, 1984 arrest, which plea was entered June 22, 1984. For the reasons set forth in the following conclusions of law the undersigned rejects these proposals and specifically makes no findings of fact in connection with that plea.
By a letter to the Hearing Officer filed with the Division of Administrative Hearings September 12, 1985, which at Respondent's request has been deemed a Motion for Rehearing, Respondent represented that she did not attend the formal hearing in this cause on June 17, 1985 because she "was a patient at Humana Hospital Biscayne in the Alcohol and Substance Abuse Program." As a pleading this letter/motion is part of the record herein.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause.
The July 20, 1984 Petition for Dismissal sets out only the following charges. It was not amended to add other charges.
COUNT ONE
That on or about the 2nd day of March, 1984, at or near 1421 South Ocean Boulevard, Pompano Beach, Broward County, Florida, said Kathleen Rollins Shumney was arrested by officers of the Pompano Beach Police Department on a felony charge of possession of cocaine, which constitutes unsatisfactory performance and/or misconduct in office and/or immorality while employed as a member of the instructional staff of The School Board of Broward County, Florida.
COUNT TWO
That on or about the 2nd day of March, 1984, at or near 1421 South Ocean Boulevards Pompano Beach, Broward County, Florida, said Kathleen Rollins Shumney was arrested by officers of the Pompano Beach Police Department on a felony charge of possession of methaqualone, which constitutes unsatisfactory performance and/or misconduct in office and/or immorality while employed as a member of the instructional staff of The School Board of Broward County, Florida.
COUNT THREE
That on or about the 2nd day March, 1984, at or near 1421 South Ocean Boulevard, Pompano Beach, Broward County, Florida, said Kathleen Rollins Shumney was arrested by officers of the Pompano Beach Police Department on a felony charge of possession of paraphernalia, which constitutes unsatisfactory performance and/or misconduct in office and/or immorality while employed as a member of the instructional staff of The School Board of Broward County, Florida.
COUNT FOUR
That on or about the 2nd day of March, 1984, at or near 1421 South Ocean Boulevard, Pompano Beach, Broward County, Florida said Kathleen Rollins Shumney was arrested by officers of the Pompano Beach Police Department on a
felony charge of possession of diazepam, which constitutes unsatisfactory performance and/or misconduct in office and/or immorality while employed as a member of the instructional staff of The School Board of Broward County, Florida.
As a teacher on continuing contract, Respondent is subject to discipline by the Petitioner's School Board as set forth in Section 231.36(4)(c) Florida statutes (1983) which provides in pertinent part, as follows:
...any member of the...instructional staff,.. who is under continuing contract may be suspended or dismissed at any time during the school year; however, the charges against him must be based on immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of a crime involving moral turpitude...
The undersigned has heard considerable oral argument from both parties and has carefully reviewed Petitioner's post-hearing proposals the thrust of which is whether or not Respondent's plea on June 22, 1984 constitutes a guilty plea, ergo, a conviction. Since Respondent has never been charged by Petitioner School Board in these proceedings with conviction of a crime; let alone with conviction of a crime of moral turpitude, the initial problem for the undersigned to resolve is whether or not the plea as it exists is admissible to prove any of the offenses actually contained in the School Board's charging document. If Petitioner fails to adequately charge Respondent, proof of charges never made will not support Petitioner's burden of proof herein.
Petitioner argues that the plea entered June 22, 1984 by Respondent constitutes both an admission of criminal possession and a conviction of the criminal charges pled to. The plea itself, was offered as a certified court record, and includes the language " plead guilty". The undersigned tentatively admitted the plea as Petitioner's Composite Exhibit 6 in evidence but permitted the parties further arguments both as to admissibility and as to probative value of the plea by way of after-filed proposed findings of fact and conclusions of law (TR97-99). Although Respondent has not availed herself of the opportunity for post-hearing proposals the undersigned has concluded through independent research that the exhibit marked as P-6 is not admissible and its significance has accordingly been discounted and no finding of fact has been made thereon. This conclusion is based upon the law of Florida as it pertains to the nature of the plea and the Circuit Court's action in regards to that plea.
Respondent entered a plea which reads: "Plead Guilty (Alford Plea)I- II Change of Plea." The material in parentheses refers to the case of North Carolina v. Alford, 400 U.S. 25 (November 23, 1970). At hearing, Respondent's attorney asserted that although Respondent plead guilty to the possession charges she maintained her innocence with an Alford plea. To all intents and purposes, the Alford decision recognizes, in the federal system, the procedure
known in Florida jurisprudence as the "nolo contendere plea. The effect of such a plea is clearly described in Vinson v. State 345 So.2d 711 (Fla. 1977) at p.
713:
A plea of nolo contendere admits
the facts for the purposes of the pending prosecution. It raises no issue of law of fact under the accusation. The United States Circuit Court of Appeals, Seventh Circuit, in a note to its decision in Tucker v. United States of America, 196
F. 260 (CA 7 Cir., 1912), described the nature and purpose of such a plea, as follows:
"The plea of nolo contendere (I will not contest it) is used in criminal cases where the accused though unwilling to confess his guilt, does not wish to go to trial and desires the court immediately to impose sentence.
The early records of this ancient plea state the fact to be that the defendant is unwilling to contest the question with the Crowns and therefore throws himself upon the mercy of the court.
Non vult contendere cum domina regina et ponit se in gratium curice. 2 Hawk.
P.C. chap. 21; Reg. v. Templeman, 1
Salk, 55; Chitty; Crim. Law, chap. 10 (which is quoted at length in the opinion of the reported case). The effect in practice was that there was nothing left for the court to do, except to impose sentence.
In State v. La Rose, 71 N.H. 435, 52 Atl. 943, the plea is thus characterized: "The plea is in the nature of a compromise between the state and the defendants,--a matter not of rights but of favor. Various reasons may exist why a defendant conscious of innocence may be willing to forego his right to make defense if he can be permitted to do so without acknowledging his guilt. Whether, in a particular case, he should be permitted to do so, is for the court.
And in Doughty v. De Amoreel, 22 R.I. 158, 46 Atl. 838, it was said: "Doubtless it is often used as a substitute for a plea of guilty but it simply says that the defendant will not
contend. This is not a confession of guilty because an accused person might find himself without witnesses to establish his innocence, from their deaths absences or other cause, and hence waive a fruitless contest.
Within that opinion; there follows a thorough discussion of the rise of the federal nolo contendere plea in fact situations remarkably similar to the fact situation described in Alford.
It is therefore concluded that the Respondent's plead however inaptly described is the equivalent of a nolo contender plea which is permitted and encouraged by Florida jurisprudence. Thus, the plea is clearly inadmissible against Respondent in a civil proceeding or in this administrative penal proceeding brought under the applicable language of Section 231.36 Florida Statutes. See Holland v. Florida Real Estate Commissions 352 So.2d 914 (Fla. 1st DCA 1977).
Pursuant to Section 90.410 Florida Statutes, evidence of any statement made during the course of plea discussions with the prosecution, which do not result in a guilty plead or which result in a guilty plea which is later withdrawn; a plea of nolo contendere a guilty plea later withdrawn; or any statements made in connection with any of these pleas is inadmissible.
Even if Respondent's June 22, 1984 plea could be characterized as a guilty plea the circuit judge withheld adjudication pending successful completion of Respondent's probation and accordingly, there is no adjudication of guilt and no judgment thereon. Only evidence of criminal convictions is admissible for impeachment purposes under Section 90.610 Florida Statutes. See Section 610.4, Ehrhardt, Evidence (1982). If a person pleads guilty or is found guilty by a jury but the sentencing judge withholds an adjudication of guilt there has been no conviction and a person's credibility cannot be impeached with it. Barber v. State, 413 So.2d 482 (Fla. 2nd DCA 1982); United States v. Georgalis 631 F. 2d 1199, 1203(5th Cir. Unit B 1980), reh. den 636 F. 2d 315 (1981) Cf., Thomas v. State 424 So.2d 193, 194 (Fla. 5th DCA 1983).
If the plea is not admissible for the reasons set forth, the resultant probation requiring Respondent to complete a drug rehabilitation program which is noted on the same document is likewise inadmissible. Even if admissible a probation assignment does not determine drug dependency or possession.
This leaves the undersigned to determine, absent any admission of guilt by respondent whether the facts as established by Petitioner meet the clear and convincing test established by Bowling v. Department of Insurance, 394 So.2d 165 (Fla. DCA 1981).
The sum total of this case is that Respondent packed to move from an apartment, lease of which had never been in her name and which she shared with two other persons. With this preface, the knowledge of the drugs by one of the co-inhabitants Mr. Trevathan, does not work against Respondent. She returned to the apartment, to which any number of people also had keys, and within 15 minutes voluntarily admitted a police officer after having confirmed by telephone with his supervisors that he was indeed a police officer responding to a disturbance call. A variety of controlled substances were found in the apartment all of which she had had time to conceal had she known of them and none of which were concealed. Some drugs were found on Respondent's check
cashing card in a separate room, and some within a dilapidated bag she says she discarded earlier in the day. None of the drugs was established to be in Respondent's sole physical possession and although she is not required to make any defense, medical reports in evidence established that she had emotional problems accounting for the rapid speech and disoriented behavior observed by the arresting officer. Respondent's "clean" report nearly a month after her arrest is not indicative of much in relation to her condition on March 2, 1984, but neither has Petitioner borne its burden to establish that Respondent possessed or was using any illicit drugs on the arrest date. Respondent is not charged with, nor is she on trial ford using cocaine at some unspecified time in her past or for alcohol abuse at present. She is not charged with unsatisfactory performance except on March 2, 1984.
Although her letter-motion for rehearing strongly suggests some current abuse problem more than a year after the arrest the charging document does not encompass a charge for that problem and the undersigned is not permitted to guess whether it is narcotics, alcohol or some other substance abuse problem or the degree thereof.
Petitioner has not cited any definitions of the charges "unsatisfactory performance", " misconduct in office", or "immorality". However, "immorality" and "misconduct in office" are defined by Rule 6B-4.09 Florida Administrative Code; which reads:
The basis for charges upon which dismissal actions against instructional personnel maybe pursued or set forth in section 231.36 Florida Statutes. Basis for each of these charges are hereby defined"
* * *
Immorality is defined as conduct that is inconsistent with the standards of public conscience and good morals. It is conduct sufficiently notorious to bring the individual concerned or the education profession into public disgrace or disrespect and impair the individual's service in the community.
Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession adopted in Rule 6B- 1.01, F. A. C., and Principles of Professional Conduct for Education Profession in Florida as adopted in Rule 6B1.06, which is so serious as to impair the individual's effectiveness in the school system.
The fact that Respondent was on disability leave at the time of her arrest on March 2, 1984, may mitigate against each of the charges set forth but it is not necessary to consider that aspect of the case, because her being "present" does not constitute "possession" of drugs and possession having not been clearly established, the charges remained unproved. Baker v. School Board of Marion County 450 So.2d 1194 (Fla. 5th DCA 1984)
It may, indeed, be possible that due to newspaper notoriety Respondent's effectiveness as a teacher has been impaired but that aspect does not justify the teacher's dismissal from employment in the absence of substantial, competent evidence to support a finding that the teacher was guilty of immorality or misconduct in office. See Baker supa.
The fact that Respondent was on disability leave at the time of her suspension or that she was physically unable to work at any time during her suspension may also mitigate any benefits owed Respondent by Petitioner upon reinstatement.
Accordingly, upon the foregoing findings of fact and conclusions of law, it is , RECOMMENDED:
That the School Board of Broward County, Florida enter a Final Order rescinding its suspension without pay of Respondent, reinstating her as a continuing contract teacher as part of its instructional personnel, and reinstating all back pay and benefits subject to any appropriate mitigation by consideration of disability leave or physical inability to work.
DONE and ORDERED this 10th day of January, 1986, in Tallahassee, Florida.
ELLA JANE P. DAVIS
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 10th day of January, 1986.
ENDNOTES
1/ P-6 is discussed within the following Conclusions of Law. 2/ All of Respondent's personal testimony is by deposition.
3/ In North Carolina v. Alford 400 US 25 (US Supreme Court 1970) the defendant was indicted for the capital crime of first degree murder. He pleaded guilty to a lesser charge of second degree murder in order to avoid the impending possibility of the death penalty. Meanwhile he disclaimed all guilt. He was sentenced to 30 years imprisonment and later appealed his conviction on the grounds that his plea was coerced by the fear of death. The Supreme Court stated that when his plea was viewed in light of the strong evidence against his claim of innocence, which further provided a means by which the judge could test whether the plea was being intelligently entered, its validity could not be seriously questioned. An accused may voluntarily knowingly and understandingly consent to the imposition of a sentence even though he is unwilling to admit
participation in the crime, or even if his guilty plea contains a protestation of innocence; when he intelligently concludes that his interests require a guilty plea and the record strongly evidences guilt. The court held that Alford's guilty plea was not invalid because it was made to avoid the possibility of the death penalty. In the federal courts, Federal Rule of Criminal Procedure 11 expressly provides that a court shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for that plea.
4/ There is confusing dicta in the decision in Bowling v. Department of Insurance 394 So.2d 165 (Fla. 1st DCA 1985), suggesting that the "clear and convincing" standard of proof is replaced in the new Administrative Procedure Act by a "competent Substantial evidences" standard of proof. Cf. Also Harvey
Department of Business Regulation 451 So.2d 1065 Fla. 5th DCA 1984). The latter standard always has been and only can be, a standard for use in appellate review. For instance, in a case seeking to revoke a teacher certificate on charges of incompetence, incompetence must be proved by clear and convincing evidence. See Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla. 2nd DCA 1966).
APPENDIX TO RECOMMENDED ORDER, CASE NO. 84-2944
The following constitute specific rulings pursuant to Section 120.59(2) Florida Statutes upon each proposed finding of fact submitted.
Petitioner's Proposed Findings of Fact
Accepted but not adopted as unnecessary.
Accepted but rephrased in FOF 2 to avoid repetitive, subordinate, and unnecessary material.
Rejected as stated as contrary to the competent substantial evidence in the record as a whole. Subject matter covered in FOF 3.
Accepted and amplified in FOF 4.
Accepted in FOF 5
Accepted in FOF 6.
Accepted in FOF 7.
Accepted but modified and amplified for space consideration, syntax, and to conform to the competent substantial evidence in the record as a whole in FOF 8.
Accepted but modified and amplified for space considerations, syntax, and to conform to the competent substantial evidence in the record as a whole in FOF 9.
Accepted in FOF 10.
Accepted with some clarification in FOF 11.
Accepted with omission of irrelevant physical descriptions, with substituted clarifying language, and amplified to conform with the competent substantial evidence in the record as a whole in FOF 13.
Accepted with omission of irrelevant motivations of the police and irrelevant physical descriptions and with additional clarifying and contextual language in FOF 14.
Sentence 1 is rejected as cumulative. Sentence 2 is accepted in FOF
Sentence 3 is rejected as stated because it is contrary to the evidence in the record as a whole and for the reasons set out in FOF 15. The subject matter is covered in FOF 3, 15, and 17. Sentence 4 is accepted in FOF 15 and amplified.
Accepted in substance, excluding irrelevant detail and amplified for significant clarifying detail in FOF 16.
Sentence 1 is rejected as cumulative. The remainder of the paragraph is covered in FOF 20 and the Conclusions of Law.
Rejected as stated as contrary to the competent substantial evidence in the record as a whole. The subject matter is covered in FOF 17.
Rejected as stated as contrary to the competent substantial evidence in the record as a whole. The subject matter is covered in FOF 18.
Rejected as stated as contrary to the competent substantial evidence in the record as a whole. The subject matter is covered in FOF 18-19a-b.
To the extent this proposal constitutes a conclusions of law it requires no ruling; to the extent it constitutes a proposed finding of fact, it is rejected as contrary to the competent substantial evidence in the record as a whole. The subject matter is covered in FOF 18-19a-b and the Conclusion of Law.
Respondent submitted no proposals.
COPIES FURNISHED:
Philip J. Montante Jr., Esquire 1500 East Atlantic Boulevard Pompano Beach, Florida 33060
Robert Heaton Jr., Esquire
2734 East Oakland Park Boulevard Suite 200
Fort Lauderdale, Florida 33312
William T. McFatter Superintendent of Schools School Board of Broward County 1320 Southwest Fourth Street Fort Lauderdale, Florida
| Issue Date | Proceedings |
|---|---|
| Jan. 10, 1986 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jan. 10, 1986 | Recommended Order | Respondent terminated after arrest for possession of narcotics. Respondent pled no contest. No evidence that narcotics were respondent's. Reinstate. |
