STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM VAN POYCK, ROBERT ) DAVID ROY and ROBERT P. )

SHELEY, )

)

Petitioners, )

)

vs. ) CASE NO. 91-5409RP

) 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 December 10, 1991.

APPEARANCES

For Petitioners: William Van Poyck, pro se #034071

Florida State Prison Post Office Box 747 Starke, Florida 32091

Robert David Roy, pro se #006000

Dade County Jail

1321 N.W. 13th Street Miami, Florida 33125

Robert P. Sheley, pro se #037726

Florida State Prison Post Office Box 747 Starke, Florida 32091

For Respondent: Claire D. Dryfuss

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 proposed amendments to Rule 33-3.018(10) and (11), Florida Administrative Code, constitutes an invalid exercise of delegated authority?

ORDER

On August 28, 1991, the Petitioners, William Van Poyck, Robert David Roy and Robert P. Sheley, filed a Petition for Administrative Determination of the Invalidity of a Proposed Rule. The Petitioners challenged a proposed amendment to Rule 33-3.028(10) and (11), Florida Administrative Code.

The formal hearing was ultimately scheduled for December 10, 1991. The formal hearing of this case was conducted by telephone. The undersigned, the court reporter, counsel for the Department of Corrections, and a representative of the Department of Corrections were located in a hearing room of the Division of Administrative Hearings in Tallahassee, Florida. Petitioners Van Poyck and Sheley were located at Florida State Prison in Starke, Florida.

Petitioner Roy was in the Dade County Jail in Miami, Florida, at the commencement of the formal hearing. Petitioner Roy was contacted by telephone and represented to the undersigned that he waived his right to participate in the formal hearing. Petitioner Roy represented that he would rely upon the handling of this matter by Petitioners Van Poyck and Sheley.

At the commencement of the formal hearing the Respondent notified the undersigned and the parties that the Respondent had filed a Notice of Change with the Bureau of Administrative Code, on October 4, 1991, withdrawing the proposed amendment to Rule 33-3.0018(10), Florida Administrative Code. The Respondent explained to the Petitioners that the proposed amendment to Rule 33- 3.0018(11), Florida Administrative Code, had not been withdrawn.

Based upon the withdrawal of the proposed amendment to Rule 33-3.0018(10), Florida Administrative Code, the Petitioners stated that their challenge was moot and there was no need to proceed with the formal hearing. The undersigned accepted the original proposed amendments at issue into evidence as Joint Exhibit 1 and accepted the Notice of Change and transmittal letter of October 4, 1991, into evidence as Joint Exhibit 2. A copy of both exhibits is attached to this Final Order. In light of the decision of the Petitioners, the parties were informed that the undersigned would issue this Final Order dismissing this case. All parties agreed to the issuance of this Final Order.

Based upon the foregoing, it is

ORDERED that the Petitioners' Petition for Determination of the Invalidity of a Proposed Rule is DISMISSED.

DONE and ENTERED this 13th day of December, 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 13th day of December, 1991.

COPIES FURNISHED:

William Van Poyck Claire Dryfuss

#034071 Assistant Attorney General

Florida State Prison Department of Legal Affairs

Post Office Box 747 Suite 1603, The Capitol

Starke, FL 32091 Tallahassee, FL 32399-1050

Robert David Roy, #006000 Carroll Webb, Exec. Director Dade County Jail Admin. Procedures Committee

1321 N.W. 13th Street Holland Building, Room 120

Miami, Florida 33125 Tallahassee, FL 32399-1300

Robert P. Sheley, #037726 Liz Cloud, Chief

Florida State Prison Bureau of Administrative Code

Post Office Box 747 The Capitol, Room 1802

Starke, Florida 32091 Tallahassee, FL 32399-0250

Donna Malphurs Harry K. Singletary, Jr.

Suite 439 Secretary

Department of Corrections Department of Corrections 2601 Blairstone Road 2601 Blairstone Road

Tallahassee, Florida 32399-2500 Tallahassee, FL 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: 91-005409RP

Orders for Case No: 91-005409RP