STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JIMMY COLEMAN, )

)

Petitioner, )

)

vs. ) CASE NO. 91-5184RX

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

FINAL ORDER

Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on September 6, 1991.

APPEARANCES

For Petitioner: Peter B. Dolinger

Non-Attorney Representative #D-071735

Apalachee Correctional Institution, D105

Post Office Box 699-E Sneads, Florida 32460

For Respondent: Linda B. Miles

Assistant Attorney General Division of General Legal Services Department of Legal Affairs

Suite 1603, The Capitol Tallahassee, Florida 32399-1300

STATEMENT OF THE ISSUES

Whether Rule 33-11.0065(5)(a), Florida Administrative Code, constitutes an invalid exercise of delegated authority?

PRELIMINARY STATEMENT

On August 13, 1991, the Petitioner, Jimmy Coleman, filed a Petition for Administrative Determination challenging the validity of Rule 33-11.0065(5)(a), Florida Administrative Code. This challenge was assigned to the undersigned and scheduled for formal hearing for September 6, 1991.

The formal hearing of this case was conducted by telephone. The undersigned, the court reporter, counsel for the Respondent, the Department of Corrections, and James G. Mitchell, a witness in the proceeding, were located in a hearing room of the Division of Administrative Hearings in Tallahassee, Florida. The Petitioner and his representative were located at Apalachee

Correctional Institution in Sneads, Florida. The hearing was conducted by a telephone connection between the two locations and the use of speaker telephones.

During the hearing the parties agreed to certain stipulated facts which have been included in this Final Order, infra. Therefore, the Petitioner called no witnesses and offered no exhibits. The Respondent presented the testimony of James G. Mitchell. The Respondent also offered three exhibits which were accepted into evidence.

On September 18, 1991, the parties were informed by a Notice of Filing of Transcript that the transcript of the formal hearing had been filed September 16, 1991. The parties were also informed that proposed final orders were to be filed on or before September 26, 1991, and that this Final Order would be issued on or before October 16, 1991.

The Petitioner has filed a proposed final order containing proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Final Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto. The Respondent did not file a proposed final order.

FINDINGS OF FACT

1. Standing.

   
   

   1. The Petitioner, Jimmy Coleman, is an inmate in the custody of the Respondent, the Department of Corrections. (Stipulated Fact).

      
      

   2. The Petitioner is subject to the rules of the Respondent, including the rule at issue in this proceeding. (Stipulated Fact).

      
      

2. The Respondent.

   
   

   1. Section 944.09, Florida Statutes, requires that the Respondent adopt rules governing the administration of the correctional system in Florida.

      
      

   2. Among other things, Section 944.09, Florida Statutes, requires that rules be adopted by the Respondent governing the award of gain-time for good conduct and all other aspects of the operation of the prison system in Florida.

      
      

   3. Section 944.275, Florida Statutes, provides, in pertinent part:

      
      

      1. The department is authorized to grant deductions from sentences in the form of gain-time in order to encourage satisfactory prisoner behavior, to provide incentive for prisoners to participate in productive activities, and to reward prisoners who perform outstanding deeds or services.

         (2)(a) The department shall establish for each prisoner sentenced to a term of years a "maximum sentence expiration date," which shall be the date when the sentence or combined sentences imposed on a prisoner will

         expire. In establishing this date, the department shall reduce the total time to be served by any time lawfully credited.

         . . . .

         (c) When an escaped prisoner or a parole violator is returned to the custody of the department, the maximum sentence expiration date in effect when the escape occurred or the parole was effective shall be extended by the amount of time the prisoner was not in custody plus the time imposed in any new sentence or sentences, but reduced by any lawful credits.

         (3)(a) The department shall also establish for each prisoner sentenced to a term of years a "tentative release date" which shall be the date projected for the prisoner's release from custody by virtue of gain-time granted or forfeited as described in this section. . . .

         . . . .

         (4)(a) As a means of encouraging satisfactory behavior, the department shall grant basic gain-time at the rate of 10 days for each month of each sentence imposed on a prisoner, subject to the following:

         . . . .

         (b) For each month in which a prisoner works diligently, participates in training, uses time constructively, or otherwise engages in positive activities, the department may grant up to 20 days of incentive gain-time, which shall be credited and applied monthly.

         . . . .

         
         

3. Rule 33-11.0065(5)(a), Florida Administrative Code.

1. Rule 33-11.0065, Florida Administrative Code, implements Sections

   944.09 and 944.275, Florida Statutes, by providing which inmates are ineligible and which inmates are eligible for incentive gain-time, the manner in which and the incentive gain-time is credited and certain conditions under which an inmate will be disqualified from earning incentive gain-time.

   
   

2. Pursuant to Rule 33-11.0065(2), Florida Administrative Code, inmates may earn incentive gain-time "while serving a Florida sentence".

   
   

3. At issue in this proceeding is the disqualification of an inmate from earning incentive gain-time provided for in Rule 33-11.0065(5)(a), Florida Administrative Code, which provides, in pertinent part:

   
   

   1. Disqualifications. The following conditions will disqualify an inmate for an award of incentive gain time for the period stated.

      1. Disciplinary or court action. An inmate is not eligible to receive incentive gain time for the month in which there is an infraction of the rules of the Department or

   the laws of the State for which he is found guilty. Additionally, those inmates on escape status and detained by other agencies may not be awarded incentive gain time for the period of time out of custody even though lodged in another confinement facility. [Emphasis added].

   
   

4. In January, 1989, the Petitioner escaped from the custody of the Respondent. (Stipulated Fact).

   
   

5. The Petitioner was recaptured in Florida the same month that he escaped. (Stipulated Fact).

   
   

6. After being recaptured, the Petitioner was incarcerated in the Escambia County jail from January 27, 1989, through July 6, 1989, when he was returned to the Respondent. (Stipulated Fact).

   
   

7. During the period of time that the Petitioner was housed in the Escambia County jail, the Petitioner "was required to work while being held on a pending escape charge at the Escambia County Road Prison, and . . . the Petitioner's conduct was above-satisfactory or outstanding during that period of time." See Order Concerning Subpoenas, August 28, 1991.

   
   

8. Pursuant to Rule 33-11.0065(5)(a), Florida Administrative Code, the Petitioner is not entitled to gain-time for the month of January, 1989, the month during which he escaped from prison.

   
   

9. The Respondent reasonably interprets Rule 33-11.0065(5)(a), Florida Administrative Code, to mean that an inmate that has been recaptured and placed in a Florida jail (State or county) is considered to be "actively serving a Florida sentence" again.

   
   

10. The Respondent also reasonably interprets Rule 33-11.0065(5)(a), Florida Administrative Code, to mean that an inmate that has been recaptured and placed in a Florida jail (State or county) is no longer on escape status or "out of custody".

    
    

11. Based upon the Respondent's interpretation of Rule 33-11.0065(5)(a), Florida Administrative Code, set out in findings of fact 14 and 15, supra, the Respondent interprets the Rule to allow inmates to earn incentive gain-time once an inmate is recaptured and returned to the custody of a Florida jail (State or county) for any time after the month in which the inmate escaped if the inmate "works diligently, participates in training, uses time constructively, or otherwise engages in positive activities . . . " consistent with Section 944.275(4)(b), Florida Statutes.

    
    

12. The Respondent requires that, if an inmate has escaped, been recaptured and returned to custody of a jail in Florida, the inmate must obtain a report from the jail that the inmate was incarcerated in after recapture, reporting the inmate's conduct while in the jail. If such a report is provided and the report indicates that the inmate is entitled to incentive gain-time under Section 944.275(4)(b), Florida Statutes, the inmate is awarded the gain- time by the Respondent.

    
    

13. In a letter dated April 19, 1989, while the Petitioner was still housed in the Escambia County jail, the Petitioner was informed of the procedure

    that he needed to follow to get incentive gain-time for the time (other than the month that he escaped) he was in the Escambia County jail. In the April 19, 1989, letter, an official of the Respondent told the Petitioner the following:

    
    

    This letter will acknowledge your recent correspondence concerning gain time on your sentence for the time period housed in the county jail.

    If the officials at the Escambia County Jail furnish a report on your conduct and activities while housed there, you may be considered for gain time awards for the period. The report should accompany you to the reception center once your escape charge is disposed.

    Keep in mind that if you are found guilty of escape any gain time you had earned prior to the escape will be forfeited. The classification staff at the reception center will be able to answer any questions you may have when you are reprocessed.

    . . . .

    
    

14. The weight of the evidence failed to prove that Rule 33-11.0065(5)(a), Florida Administrative Code, or the Respondent's interpretation thereof, is contrary to Section 944.275(4)(b), Florida Statutes.

    
    

15. The weight of the evidence also failed to prove that Rule 33- 11.0065(5)(a), Florida Administrative Code, or the Respondent's interpretation thereof, is arbitrary or capricious.

    
    

    CONCLUSIONS OF LAW

    
    

    1. Jurisdiction.

       
       

16. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.56, Florida Statutes (1989).

    
    

    1. Standing.

       
       

17. The Petitioner has standing to institute the instant action. He is incarcerated by the Respondent and subject to the rules of the Respondent, including the rule at issue in this proceeding. See Department of Corrections

    v. Sumner, 447 So.2d 1388 (Fla. 1st DCA 1984).

    
    

    1. Nature of the Petitioner's Challenge.

       
       

18. The only appropriate challenge to an existing rule which may be brought before the Division of Administrative Hearings is a challenge pursuant to Section 120.56, Florida Statutes. The only relief which may be sought pursuant to Section 120.56, Florida Statutes, is a determination of the invalidity of the rule on the ground that the rule is an "invalid exercise of delegated authority."

    
    

19. What constitutes an "invalid exercise of delegated authority" is defined in Section 120.52(8), Florida Statutes, as follows:

    1. "Invalid exercise of delegated authority" means action which goes beyond the powers, functions, and duties delegated by the Legislature. A proposed or existing rule is an invalid exercise of delegated legislative authority if any one or more of the following apply:

       1. The agency has materially failed to follow the applicable rulemaking procedures set forth in s. 120.54;

       2. The agency has exceeded its grant of rulemaking authority, citation to which is required by s. 120.54(7);

       3. The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s. 120.54(7);

       4. The rule is vague, fails to establish adequate standards for agency decisions, or vest unbridled discretion in the agency; or

       5. The rule is arbitrary or capricious.

    
    

20. In order to challenge an existing rule, the person bringing the challenge must state with particularity which portion(s) of the above definition the challenged rule violates and the facts supporting such an allegation.

    
    

21. In this case, the Petitioner has alleged that Rule 33-11.0065(5)(a), Florida Administrative Code, constitutes an "invalid exercise of delegated authority" in violation of Section 120.52(8)(c), Florida Statutes, because the Rule "enlarges, modifies, or contravenes the specific provisions of law implemented" and Section 120.52(8)(e), Florida Statutes, because the Rule is "arbitrary or capricious."

    
    

    1. Burden of Proof.

       
       

22. The burden of proof in this proceeding was on the Petitioner. Florida League of Cities, Inc. v. Department of Insurance and Treasurer, 540 So.2d 850 (Fla. 1st DCA 1989); Department of Administration, Division of Retirement v. Albanese, 455 So.2d 639 (Fla. 1st DCA 1984); and Agrico Chemical Company v. Department of Environmental Regulation, 365 So.2d 759 (Fla. 2d DCA 1979).

    
    

    1. The Validity of Rule 33-11.0065(5)(a), Florida Administrative Code.

    
    

23. The Petitioner has alleged that Rule 33-11.0065(5)(a), Florida Administrative Code, is invalid pursuant to Sections 120.52(8)(c) and (e), Florida Statutes, because the Rule "enlarges, modifies, or contravenes the specific provisions of law implemented" and because the Rule is "arbitrary or capricious".

    
    

24. Section 120.52(8)(c), Florida Statutes: The Petitioner has argued that Rule 33-11.0065(5)(a), Florida Administrative Code, does not allow inmates to earn incentive gain-time if they are incarcerated in a county jail in Florida after an attempted escape, regardless of their behavior while in the county jail. The Petitioner has argued that such an interpretation of Rule 33- 11.0065(5)(a), Florida Statutes, is contrary to Section 944.275(4)(b), Florida Statutes, because it prevents an inmate from earning incentive gain-time even if

    the inmate "works diligently, participates in training, uses time constructively, or otherwise engages in positive activities "

    
    

25. The problem with the Petitioner's argument is that the Petitioner's interpretation of Rule 33-11.0065(5)(a), Florida Administrative Code, is incorrect. The provisions of Rule 33-11.0065(5)(a), Florida Administrative Code, and the Respondent's interpretation thereof, do not prohibit inmates who are recaptured after an escape and who are housed in a Florida county jail after recapture from earning incentive gain-time.

    
    

26. Rule 33-11.0065(5)(a), Florida Administrative Code, only prohibits an inmate from earning incentive gain-time if the inmate is "out of custody." The Respondent does not consider an inmate who is housed in a Florida jail after an escape to be "out of custody." Therefore, any inmate who is housed in a jail in Florida after an escape attempt is entitled to incentive gain-time if the inmate "works diligently, participates in training, uses time constructively, or otherwise engages in positive activities "

    
    

27. In order to be entitled to incentive gain-time while housed in a county jail after an escape attempt, the Respondent does require that the inmate provide a report from officials where the inmate was housed concerning the inmates conduct and activities while incarcerated in the county jail. This requirement is not contrary to the requirements of Section 944.272(4)(b), Florida Statutes.

    
    

28. Section 120.52(8)(e), Florida Statutes: An arbitrary and capricious action has been defined as follows:

    
    

    A capricious action is one which is taken without thought or reason or irrationally.

    An arbitrary decision is one not supported by facts or logic, or despotic.

    
    

    Agrico, supra.

    
    

29. The weight of the evidence presented in this proceeding failed to prove that Rule 33-11.0065(5)(a), Florida Administrative Code, was promulgated without thought or reason or that the Rule is not supported by facts and logic.

    
    

30. Conclusion: Based upon the foregoing, it is concluded that the Petitioner failed to prove that Rule 33-11.0065(5)(a), Florida Administrative Code, "enlarges, modifies, or contravenes the specific provisions of law implemented" or is "arbitrary or capricious". Therefore, the Petitioner has failed to prove Rule 33-11.0065(5)(a), Florida Administrative Code, constitutes an invalid exercise of delegated authority pursuant to Section 120.52(8)(c) or (e), Florida Statutes, in violation of Section 120.56, Florida Statutes.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that the Petitioner has failed to prove that Rule 33-11.0065(5)(a),

Florida Administrative Code, is an invalid exercise of delegated authority in violation of Section 120.56, Florida Statutes, and the Petitioner's Petition for Administrative Determination is DISMISSED.

DONE and ENTERED this 4th day of October, 1991, in Tallahassee, Florida.

LARRY J. SARTIN

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 4th day of October, 1991.

APPENDIX TO FINAL ORDER

The Petitioner has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Final Order where they have been accepted, if any.

Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Respondent did not file a proposed final order.

The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Final Order

of Fact Number of Acceptance or Reason for Rejection

1 1.

2 9.

3 10 and 11. The parties agreed that the Petitioner was incarcerated in the Escambia County jail until July 6, 1989, not July 5, 1989. 4 12.

5 14-16.

1. Hereby accepted.

2. Not supported by the weight of the evidence. The Petitioner has been denied incentive gain-time because he has failed to provide information concerning his conduct while incarcerated in the Escambia County jail. The Petitioner, by ignoring the instructions he was given by letter and during the formal hearing as to how he may obtain the incentive gain-time the Petitioner believes he is entitled to, has prevented himself from being awarded the sought after gain-time.

3. Not supported by the weight of the evidence.

4. This is essentially an incorrect conclusion of law.

COPIES FURNISHED:

Jimmy Coleman #026337

Apalachee Correctional Institution, D105 Post Office Box 699-E

Sneads, Florida 32460

Peter B. Dolinger #D-071735

Apalachee Correctional Institution, D105 Post Office Box 699-E

Sneads, Florida 32460

Donna Malphurs Suite 439

Department of Corrections 2601 Blairstone Road

Tallahassee, Florida 32399-2500

Richard Doran

Assistant Deputy Attorney General Division of General Legal Services Department of Legal Affairs

The Capitol

Tallahassee, Florida 32399-1050

Linda B. Miles

Assistant Attorney General Division of General Legal Services Department of Legal Affairs

Suite 1603, The Capitol Tallahassee, Florida 32399-1050

Carroll Webb, Executive Director Administrative Procedures Committee Holland Building, Room 120 Tallahassee, Florida 32399-1300

Harry K. Singletary, Jr. Secretary

Department of Corrections 2601 Blairstone Road

Tallahassee, Florida 32399-2500

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 ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Docket for Case No: 91-005184RX

Orders for Case No: 91-005184RX