STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS )

AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 97-0850

)

JOHNNIE HOLCY, JR., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on August 14, 1997, in Palatka, Florida, before the Division of Administrative Hearings, by its designated Administrative Law Judge, Suzanne F. Hood.

APPEARANCES

For Petitioner: Amy J. Bardill, Esquire

Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489

For Respondent: No Appearance

STATEMENT OF THE ISSUE

The issues are whether Respondent violated Sections 943.13(7), 943.1395(6), and 943.1395(7), Florida Statutes, and if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On or about April 24, 1996, Petitioner Criminal Justice Standards and Training Commission issued an Administrative

Complaint alleging that Petitioner Johnnie Holcy, Jr., was guilty of violating Sections 943.13(7), 943.1395(6), and 943.1395(7), Florida Statutes. Respondent requested a formal hearing on

May 24, 1996. Petitioner referred the case to the Division of Administrative Hearings on February 21, 1997.

The undersigned issued a Notice of Hearing dated March 17, 1997, scheduling this matter for hearing on June 12, 1997. An Amended Notice of Hearings dated March 21, 1997, rescheduled the case for hearing on June 19, 1997.

On March 26, 1997, Petitioner filed a Notice of Serving Petitioner's Second Set of Interrogatories to Respondent. That same day, Petitioner filed a copy of Petitioner's Request for Admissions. Petitioner filed a Motion for Order Deeming Admissions Admitted on May 21, 1997.

Petitioner filed a Motion for Continuance on June 2, 1997.

An order dated June 4, 1997, rescheduled the hearing for August 14, 1997.

Respondent did not make an appearance at the hearing. After waiting an appropriate period of time, the undersigned determined that there was no reason for Respondent to believe that the case would not be heard as scheduled. Petitioner's Motion for Order Deeming Admissions Admitted was granted. Petitioner then offered the following exhibits which were accepted into evidence:

(a) certified copy of a Judgment and Sentence for Attempted Possession of Cocaine dated July 17, 1995; (b) certified copy of

a Judgment and Sentence for Resisting Officer Without Violence dated July 17, 1995; (c) affidavit of Petitioner's records custodian that Petitioner currently was certified as a corrections officer dated June 11, 1997; and (d) lab report dated June 21, 1994, showing that a substance tested positive for cocaine. Petitioner did not present the testimony of any witnesses. At the conclusion of the hearing, Petitioner indicated that it would not order a copy of the transcript or file a proposed recommended order.

FINDINGS OF FACT

1. Petitioner certified Respondent as a correctional officer on February 14, 1986. Since that time, Respondent has held Correctional Certificate Number 81761.

2. On or about May 8, 1994, Respondent was in the front yard of his residence. Police officers pulled into Respondent's driveway and requested that Respondent approach the patrol car.

3. Respondent walked away from the police car. As he walked away, Respondent dropped an item from his pocket.

4. The item that Respondent dropped was a bag containing white powder. The white powder was cocaine. Respondent was aware of the presence of the bag on his person. Respondent's possession of the bag containing cocaine was unlawful.

5. One of the police officers advised Respondent that he was under arrest. The police officer instructed Respondent to put his hands behind him. Respondent refused to put his hands

   behind him. The police officers physically restrained Respondent.

6. Respondent subsequently entered a plea of nolo contendere to the offenses of attempted possession of cocaine and resisting officer without violence. On July 17, 1995, Respondent was adjudicated guilty of these two offenses by the county court judge, in and for Putnam County, Florida, in Case Number

   95-2767MM06. The court suspended any fine or cost which might be imposed for the conviction of resisting officer without violence. The court ordered Respondent to pay a fine of $241.50, prosecution costs of $50, and an investigation cost of $50 for the conviction of attempted possession of cocaine.

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over this subject matter and the parties to this action pursuant to Section 120.57(1), Florida Statutes.

8. Petitioner is the agency charged with the responsibility of enforcing the statutory provisions related to the certification and discipline of correctional officers. Section 943.12, Florida Statutes.

9. Petitioner has the burden of proving by clear and convincing evidence that Respondent violated Sections 943.13(7), 943.1395(6), and 943.1395(7), Florida Statutes. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1st DCA 1987).

10. Section 943.13(4), Florida Statutes, states that correctional officers are not eligible for employment if they have been convicted of "any felony or of a misdemeanor involving perjury or a false statement, or have received a dishonorable discharge from any of the Armed Forces of the United States." Section 943.1395(6), Florida Statutes, mandates that Petitioner revoke the certification of any officer that is not in compliance with Section 943.13(4), Florida Statutes. There is no competent evidence that Respondent is guilty of violating Section 943.13(4), Florida Statutes.

11. Section 943.13(7), Florida Statutes, requires that all correctional officers have good moral character.

12. Section 943.1395(7), Florida Statutes, states as follows in pertinent part:

    (7) Upon a finding by the commission that a certified officer has not maintained good moral character, the definition of which has been adopted by rule and is established as a statewide standard, as required by s. 943.13(7), the commission may enter an order imposing one or more of the following penalties:

    1. Revocation of certification.

    2. Suspension of certification for a period not to exceed 2 years.

    3. Placement on a probationary status for a period not to exceed 2 years, subject to terms and conditions imposed by the commission. Upon the violation of such terms and conditions, the commission may revoke certification or impose additional penalties as enumerated in this subsection.

    4. Successful completion by the officer of any basic recruit, advanced, or career development training or such retraining deemed appropriate by the commission.

    5. Issuance of a reprimand.

    
    

13. Rule 11B-27.0011(4), Florida Administrative Code, states as follows in pertinent part:

    (4) For the purposes of the Commission's implementation of any of the penalties specified in Section 943.1395(6) or (7), F.S., a certified officer's failure to maintain good moral character, as required by Section 943.13(7), F.S., is defined as:

    
    

    * * *

    
    

    (b) The perpetration by the officer of an act which would constitute any of the following misdemeanor or criminal offenses, whether criminally prosecuted or not: Sections . . . 843.02, . . . 893.13, . . . F.S., or any principal, accessory, attempt, solicitation, or conspiracy, pursuant to Chapter 777, F.S., which had the crime been committed or completed, would have been a felony offense.

14. Section 893.13(6)(a), Florida Statutes, states as follows:

(6)(a) It is unlawful for any person to be in actual or constructive possession of a controlled substance unless such controlled substance was lawfully obtained from a practitioner or pursuant to a valid prescription or order of a practitioner while acting in the course of his professional practice or to be in actual or constructive possession of a controlled substance except as other wise authorized by this chapter.

Any person who violates this provision commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

1. Cocaine is a Schedule II controlled substance. Section 893.03(2), Florida Statutes.

2. In this case, the court adjudicated Respondent guilty of a first degree misdemeanor, attempted possession of cocaine, in violation of Sections 777.04(4)(e) and 893.13(6)(a), Florida Statutes.

3. Section 843.02, Florida Statutes, states that any person resisting an officer without violence to his person, while the officer is in the process of executing any legal duty, is guilty of a misdemeanor of the first degree. The court found Respondent guilty of this crime also.

4. Petitioner has met its burden in this case. There are no mitigating circumstances. Respondent's commission of more than one violation of Section 943.13(7), Florida Statutes, is an aggravating circumstance. Respondent's certification as a correctional officer should be revoked. Rule 11B-27.005, Florida Administrative Code.

is,

RECOMMENDATION

Based upon the findings of fact and conclusions of law, it

RECOMMENDED:

That Petitioner enter a Final Order revoking Respondent's

certification as a correctional officer.

DONE AND ENTERED this 18th day of August, 1997, in Tallahassee, Leon County, Florida.

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1997.

COPIES FURNISHED:

Amy J. Bardill, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489

Johnnie Holcy, Jr. Route 6, Box 300

Palatka, Florida 32177

A. Leon Lowry, II, Director Criminal Justice Standards

and Training Commission Post Office Box 1489

Tallahassee, Florida 32302-1489

Michael Ramage, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 97-000850

Orders for Case No: 97-000850