STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM E. SHEARER, )

)

)

Petitioner, )

)

vs. ) CASE NO. 92-2391RXP

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DEPARTMENT OF CORRECTIONS, )

)

)

Respondent. )

)

FINAL

ORDER DISMISSING PETITION

By Petition for an Administrative Hearing dated April 15, 1992, William E. Shearer, Petitioner, alleges that in transferring him from DeSoto Correctional Institution to Hendry Correctional Institution the Department of Corrections, Respondent, violated provisions of Section 33-6, Florida Administrative Code.

On April 24, 1992, the Department of Corrections filed a Motion to Dismiss for lack of jurisdiction.

Although the Petition was accepted by the Division of Administrative Hearings as a rule challenge and assigned to the undersigned Hearing Officer, a careful reading of the Petition fails to disclose Petitioner even desires to contest the validity of Chapter 33-6, Florida Administrative Code. The complaint is merely that the Department failed to follow its rules in transferring Petitioner from DeSoto Correctional Institution to Hendry Correctional Institution.

This is an allegation that Petitioner is a person whose substantial interests have been adversely affected by the Department's action, and he desires to contest that action. This is the type action brought in a Section 120.57, Florida Statutes, proceeding in which the substantial interests of a party are determined by an agency. However, Section 120.52(12)(d) precludes prisoners from participating in a Section 120.57(12)(d) proceeding. No rule is here alleged to be an invalid exercise of delegated legislative authority, and the Division of Administrative Hearings is without jurisdiction to entertain a Section 120.57(1) petition from an inmate of a Florida Correctional Institution. It is, therefore,

ORDERED that the Petition for an Administrative Hearing filed by William E. Shearer be dismissed.

DONE and ORDERED this 30th 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 30th day of April, 1992.

Copies furnished to:

William E. Shearer 100859

Hendry Correctional Institution Route 2, Box 13-A MB 845

Immokalee, FL 33934

Louis A. Vargas, Esquire Department of Corrections 2601 Blairstone Road

Tallahassee, FL 32399-2500

Claire Dryfuss, Esquire Assistant Attorney General The Capitol, Suite 1603 Tallahassee, FL 32399-1050

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

Donna Malphurs

Department of Corrections 2601 Blairstone Road

Suite 439

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: 92-002391RX

Orders for Case No: 92-002391RX