STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JEFFREY JEROME WALKER, )

)

)

Petitioner, )

)

vs. ) CASE NO. 92-3147RXP

)

DEPARTMENT OF CORRECTIONS, )

)

)

Respondent. )

)

FINAL ORDER OF DISMISSAL

This cause came on for consideration of Respondent's Motion To Dismiss the Petition For Administrative Hearing filed by Petitioner in this case. As grounds therefor, Respondent alleges these proceedings attempt to challenge the same Rule 33-3.006(5)(a), Florida Administrative Code, challenged in DOAH Case No. 92-2390RXP.

By Final Order Of Dismissal dated April 30, 1992, the challenge to Rule 33-3.006(5)(a), Florida Administrative Code, by Jeffrey Jerome Walker on grounds the rule is unconstitutional was dismissed. The instant challenge is barred by the doctrine of res judicata.

Here the same parties are involved, the same forum is involved and the same cause of action, i.e., validity of Rule 33-3.006(5)(c), Florida Administrative Code, is involved. As stated in Albrecht v. State of Florida, 444 So.2d 8, 1-12 (Fla. 1983).

The general principle behind the doctrine of res judicata is that a final judgment by

a court of competent jurisdiction is absolute and puts to rest every justiciable, as well

as every actually litigated, issue. Gordon v. Gordon, 592 So.2d 40 (Fla.) cert. den., 344

U.S. 878, 73 S.Ct. 165, 97 L.Ed. 680 (1952);

Lake v. Hancock, 38 Fla. 53, 20 So. 811 (1986).

However, this principle only applies when the elements of res judicata are present and the doctrine is properly applied. Gordon, 59 So.2d at 43. Where the second suit is upon the same cause of action and between the

same parties as the first, res judicata applies. The first judgment is conclusive as to all matters which were or could have been deter- mined. Id. at 44; Prall v. Prall, 58 Fla.

496, 50 So. 867, 870 (1909). It has been

well settled by this Court that several con- ditions must occur simultaneously if a matter is to be made res judicata: identity of the thing sued for; identity of the cause of action; identity of parties; identity of the quality in the person for or against whom the claim is made.

As stated by the Court in Gordon, supra, at p. 44 The difference which we consider exists between res judicata and estoppel by judgment is that under res judicata a final decree or judgment bars a subsequent suit between the same parties based upon the same cause of action and is con- clusive as to all matters germane thereto that were or could have been raised, while the prin- ciple of estoppel by judgment is applicable where the two causes of action are different, in which case the judgment in the first suit only estops the parties from litigating in the second suit issues -- that is to say points and questions -- common to both causes of action and which were actually adjudicated in the prior litigation. (emphasis supplied)

Since all of the conditions precedent to the application of the principle of res judicata are present in both cases, the principle of res judicata is applicable to these proceedings; and, since Petitioner could have raised all issues in the first proceeding he now attempts to raise in the second, he is barred from doing so by the principle of res judicata.

It is therefore,

ORDERED that the Petition of Jeffrey Jerome Walker to challenge the validity of Rule 33-3.006(5)(a), Florida Administrative Code, be dismissed.

DONE and ORDERED this 2nd day of June, 1992, in Tallahassee, Florida.

Hearings

Hearings

K. N. AYERS Hearing Officer

Division of Administrative

The Desoto Building 1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative

this 2nd day of June, 1992.

Copies furnished to:

Jeffrey Jerome Walker #075763 Dorm C-N-050T

Tomoka Correctional Institution 3950 Tiger Bay Road

Daytona Beach, FL 32124

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

Tallahassee, FL 32399-2500

Donna Malphurs Room 439

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

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: 92-003147RX

Orders for Case No: 92-003147RX