Department of Corrections|doah|PERRY THANE FRANKS, JOEL BLAN... -- eLawyers

Petitioner: PERRY THANE FRANKS, JOEL BLANTON, JAMES RICHARDS, DEAN PETERSEN, RALPH PRITCHETT, JOSEPH CHARLES NORTON, FELTON LEROY HINGSON, ROBERT LEWIS, JAMES W. BEASLEY, AND ROBERT D`AMATO
Respondent: DEPARTMENT OF CORRECTIONS
Judges: K. N. AYERS
Agency: Department of Corrections
Locations: Tallahassee, Florida
Filed: Mar. 24, 1992
Status: Closed
DOAH Final Order on Tuesday, April 7, 1992.
Latest Update: Apr. 08, 1992

Summary: By Motion To Dismiss, dated April 1, 1992, Respondent by and through its attorney, moves to dismiss the Petition filed in the above-styled case to challenge the validity of Rule 33.7008, Florida Administrative Code. As grounds therefor, it is alleged the same Petitioners were parties in DOAH Case No. 91- 8331R in which a Final Order was entered sustaining the challenged rule. A check of the Division's file in DOAH Case No. 91-8331R discloses that each Petitioner in this proceeding was a Petition

92-1831.PDF

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PERRY THANE FRANKS, JOEL BLANTON, ) JAMES RICHARDS, DEAN PETERSEN, ) RALPH PRITCHETT, JOSEPH CHARLES ) NORTON, FELTON LEROY HINGSON, ) ROBERT LEWIS, JAMES W. BEASLEY ) and ROBERT D'AMATO, )

)

Petitioner, )

)

vs. ) CASE NO. 92-1831RXP

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

FINAL ORDER OF DISMISSAL

By Motion To Dismiss, dated April 1, 1992, Respondent by and through its attorney, moves to dismiss the Petition filed in the above-styled case to challenge the validity of Rule 33.7008, Florida Administrative Code. As grounds therefor, it is alleged the same Petitioners were parties in DOAH Case No. 91- 8331R in which a Final Order was entered sustaining the challenged rule.

A check of the Division's file in DOAH Case No. 91-8331R discloses that each Petitioner in this proceeding was a Petitioner in DOAH Case No. 91-8331R. Accordingly, the instant proceeding is barred by the doctrine of res judicata.

Although Petitioners herein purport to challenge the validity of Rule 33- 7.008, Florida Administrative Code, on grounds the Department of Corrections failed to follow the applicable rule making procedures set forth in Section 120.54(4)(c), Florida Statutes, this is an issue that could have been raised in DOAH Case No. 91-8331R. As stated in Gordon v. Gordon, 59 So.2d 40, 44 (Fla.) cert. den. 344 U.S. 878, 73 S.Ct. 165, 97 L.Ed. 680 (1952).

. . . under res adjudicata a final decree or judgment bars a subsequent suit between the same parties based upon the same cause of action and is conclusive as to all matters germane thereto that were, or could have been raised . . . .

It is, therefore,

ORDERED that this Petition is barred by res judicata and is hereby dismissed.

DONE and ORDERED this 7th day of April, 1992, in Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The Desoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 7th day of April, 1992.

Copies furnished to:

Perry Thane Franks #630101

Marion Correction Institution Post Office Box 158

Lowell, FL 32663

Joel Blanton #138403