STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF LAW ) ENFORCEMENT, CRIMINAL JUSTICE ) STANDARDS AND TRAINING )

COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 02-4321PL

)

TARENCE ROBINSON, )

)

Respondent. )

________ )

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case before Larry J. Sartin, an Administrative Law Judge of the Division of Administrative Hearings, on February 19, 2003. The hearing was conducted by video teleconferencing between sites in Miami and Tallahassee, Florida.

APPEARANCES

For Petitioner: Joseph S. White

Assistant General Counsel

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32301

For Respondent: Tarence Robinson, pro se

13990 Northeast 5th Avenue North Miami, Florida 33161

STATEMENT OF THE ISSUE

The issue in this case is, pursuant to a Pre-Hearing Stipulation and Contingent Settlement Agreement, whether a statement made by Respondent, Tarence Robinson, on April 13, 1999, was obtained freely and lawfully by law enforcement.

PRELIMINARY STATEMENT

On or about July 13, 2001, the Criminal Justices Standards and Training Commission filed an Administrative Complaint against Tarence Robinson. The Administrative Complaint alleged, in part:

1. Respondent was certified by the Criminal Justice Standards and Training Commission on November 15, 1991, and was issued Correctional Certificate Number 73013.

   
   

2. On or about April 13, 2000 [1] and May 16, 2000, the Respondent, Tarence Robinson, did unlawfully in one or more official proceedings to wit: sworn statements in an internal affairs investigation and a criminal investigation [sic], willfully make two or more material statements under oath which contradict each other.

   
   

3. The actions of the Respondent did violate the provisions of Section 837.021 or any lesser included offenses, Section 943.1395(6) and/or (7), Florida Statues, and/or Rule 11B-27.0011(4)(a), Florida Administrative Code, in that Respondent has failed to maintain the qualifications established in Section 943.13(7), Florida Statutes, which require that a Correctional Officer in the State of Florida have good moral character.

   
   

   On or about November 7, 2001, Mr. Robinson executed an Election of Rights form, indicating that he disputed the allegations of fact contained in the Administrative Complaint and requesting a formal administrative hearing pursuant to Section 120.569(2)(a), Florida Statutes. On November 7, 2002, 2/ the matter was filed with the Division of Administrative Hearings by the Florida Department of Law Enforcement with a request that the case be assigned to an administrative law judge. The matter was designed DOAH case number 02-4321PL and was assigned to the undersigned.

   The final hearing was scheduled for a January 16, 2003, hearing by a Notice of Hearing entered November 19, 2002.

   On December 31, 2002, a Pre-Hearing Stipulation and Contingent Settlement Agreement was filed by the parties. Pursuant to this pleading, the parties agreed, in pertinent part, to the following:

4. Contingent Settlement Agreement. The Respondent maintains that his statement of April 13, 1999 to detectives of the North Miami Police Department was not obtained voluntarily by them and therefore it is not admissible in evidence against him in the formal hearing. The parties agree that the issue of the admissibly [sic] of this

April 13, 1999 statement is the linchpin in the proof of the Petitioner's case. Were this statement to be excluded in [sic] evidence by the Administrative Law Judge, the Petitioner would be unable to prove that Officer Robinson's May 16, 2000 sworn

statement was contradictory to the statement of April 13, 1999. Conversely, the parties agree that if the April 13, 1999 statement were deemed admissible, the Petitioner would be able to prove the allegation set forth in the Administrative Complaint. Accordingly, the parties stipulate that the evidence and testimony [sic] at formal hearing in this case should be limited to the question of the admissibility of the Respondent's

April 13, 1999 statement . . . The parties further stipulate that if the Administrative Law Judge should issue a recommended order finding that the statement is inadmissible, the Petitioner will file a Voluntary Dismissal in the case and recommend such dismissal to the Criminal Justice Standards and Training Commission as the final disposition in the case. Should the Administrative Law Judge issue a Recommended Order finding that the statement is admissible, the Respondent agrees to Voluntarily Relinquish his correctional officer certification to the Criminal Justice Standards and Training Commission as the final disposition of this cause.

On January 3, 2003, a Motion for Continuance was filed by Respondent. Respondent represented that he would be appearing in federal court on the date scheduled for the final hearing. The continuance was granted by an Order Granting Continuance and Re-scheduling Hearing issued on January 8, 2003. The hearing was rescheduled for February 19, 2003.

On February 4, 2003, Respondent filed an Emergency Motion for Continuance in which counsel for Respondent represented that he had had no contact with Respondent and, therefore, was unable to adequately represent him at the scheduled hearing. The

Motion was subsequently discussed with the parties during two hearings conducted by telephone. As a result of those telephone hearings, counsel reached Respondent by telephone and informed him: (1) counsel for Respondent intended to file a motion to withdraw; (2) the final hearing was scheduled for February 19, 2003, and would be conducted by video teleconferencing 3/; and

1. the undersigned intended to proceed to the final hearing on the date scheduled.

   On February 12, 2003, counsel for Respondent filed a Motion to Withdraw. That Motion was granted by an Order entered February 14, 2003, after the second of the telephone hearings conducted with the parties on February 13, 2003.

   At the final hearing Petitioner appeared, along with the undersigned, from a public hearing room at the offices of the Division of Administrative Hearings in Tallahassee, Florida. Respondent, the witnesses and court reporter appeared from the Ruth Bryan Owen Rohde Building in Miami, Florida.

   Petitioner presented the testimony of Lawrence Taddeo, Scott Damon Croye, and Respondent. Petitioner's Exhibits 1, 2, and 3 were admitted. Respondent testified on his own behalf.

   Respondent did not call any other witnesses or offer any exhibits into evidence. The terms of the Pre-Hearing Stipulation and Contingent Settlement Agreement were explained to Mr. Robinson at the commencement of the hearing.

   By Notice of Filing of Transcript issued March 6, 2003, the parties were informed that the one-volume Transcript of the final hearing had been filed on March 5, 2003. The parties, pursuant to agreement, therefore, had until March 17, 2003, to file proposed recommended orders. Petitioner filed Petitioner's Proposed Recommended Order on March 18, 2003. Respondent did not file a proposed recommended order. Petitioner's submittal has been fully considered. The exhibits in this case were not filed until April 1, 2003.

   FINDINGS OF FACT

   
   

   1. Petitioner, the Criminal Justice Standards and Training Commission (hereinafter referred to as the "Commission"), is created within the Florida Department of Law Enforcement by Section 943.11, Florida Statutes. The Commission is charged with the responsibility for, among other things, the certification and revocation of certification of officers, instructors, and criminal justice training schools in Florida.

   2. Respondent, Tarence Robinson, has been certified as a correction officer in the State of Florida since November 15, 1991, having been issued Correctional Certificate Number 73013.

   3. On April 13, 1999, Lawrence Taddeo, a detective with the City of North Miami Police Department (hereinafter referred to as the "Police Department"), spoke with Mr. Robinson by telephone and asked him to meet with Detective Taddeo about

      allegations by Mr. Robinson's step-daughter that he had sexually battered her.

   4. Mr. Robinson agreed to Detective Taddeo's request and voluntarily went to the Police Department's offices where he met Detective Taddeo. Mr. Robinson arrived at about 11:00 a.m. Upon his arrival, Mr. Robinson was interrogated by Detective Taddeo and Scott Croye, another detective with the Police Department. Mr. Robinson was voluntarily interrogated.

   5. Before questioning Mr. Robinson, Detective Taddeo explained the nature of the investigation and advised

      Mr. Robinson of his "Miranda" rights. See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694 (1966).

      Mr. Robinson indicated that he understood his rights, agreed to waive those rights, and signed a form titled "North Miami Police Department Advice of Constitutional Rights Before Interview" (hereinafter referred to as the "Miranda Rights Waiver Form").

   6. The Miranda Rights Waiver Form includes the following warning and questions:

      BEFORE YOU ARE ASKED ANY QUESTIONS, YOU MUST UNDERSTAND YOUR RIGHTS.

      
      

      1. You have the right to remain silent. You need not talk to me or answer my questions if you do not wish to do so.

         
         

         . . . .

      2. Should you talk to me, anything you say can and will be introduced into evidence in court against you.

         
         

         . . . .

         
         

      3. If you want an attorney to represent you at this time or at any time during questioning, you are entitled to such counsel.

         
         

         . . . .

         
         

      4. If you cannot afford an attorney and so desire, one will be provided without charge.

         
         

         . . . .

         _

         
         

         DO YOU FULLY UNDERSTAND THE ABOVE STATEMENT OF YOU RIGHTS?

         
         

         . . . .

         
         

         ARE YOU WILLING TO ANSWER QUESTIONS WITHOUT THE PRESENCE OF AN ATTORNEY AT THIS TIME?

         
         

         . . . .

         
         

         After the each of the foregoing questions, Mr. Robinson checked "Yes" indicating that he understood his rights and that he was willing to proceed with the investigation without an attorney. Following the foregoing questions and under the statement "THIS STATEMENT IS SIGNED OF MY OWN FREE WILL WITHOUT ANY THREATS OR

         PROMISES HAVING BEEN MADE TO ME," Mr. Robinson placed his signature and the date, April 13, 1999. His signature was witnessed by Detectives Taddeo and Croye, who also signed and dated the Miranda Rights Waiver Form.

   7. Mr. Robinson, who holds a college degree, in fact understood his constitutional rights and knowingly waived them before giving his April 13, 1999, statement.

   8. After having been properly advised of the nature of the allegations against him and his constitutional rights,

      Mr. Robinson proceeded to freely, without promise, threat, or coercion, answer questions posed by Detectives Taddeo and Croye concerning the allegations that had been made by his step- daughter.

   9. The interrogation began at approximately 11:15 a.m. and continued until shortly after 1:00 p.m. At no time did

      Mr. Robinson indicate that he wanted to assert his constitutional rights to remain silent or to have an attorney present.

   10. A little after 1:00 p.m., Mr. Robinson agreed to give a tape recorded statement. Mr. Robinson was placed under oath at the commencement of the tape recorded statement.

   11. At no time during the recording of his statement did Mr. Robinson indicate that he wished to assert his constitutional rights to remain silent or to have an attorney present.

   12. At the end of Mr. Robinson's recorded statement, Mr. Robinson was placed under arrest by Detectives Taddeo and Croye pursuant to an arrest warrant.

   13. Mr. Robinson's April 13, 1999, statement is admissible in this proceeding.

       CONCLUSIONS OF LAW

       
       

   14. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

   15. Petitioner has the burden of proving by clear and convincing evidence the facts pertinent to the only issue which the parties stipulated required a decision in this matter. That issue is whether the statement made by Mr. Robinson on April 13, 1999, to Detectives Taddeo and Croye was obtained freely and lawfully under the laws governing criminal matters and, therefore, is admissible as evidence in this proceeding.

   16. In particular, the parties stipulated that, if the procedural safeguards of the Fifth Amendment to the Constitution of the United States, commonly referred to as the giving of "Miranda rights," were followed in this matter, then

       Mr. Robinson's April 13, 1999, statement is admissible, Petitioner can prove the allegations of the Administrative Complaint and, consequently, Mr. Robinson will surrender his license. Conversely, the parties stipulated that if Mr.

       Robinson's Miranda rights were violated, the April 13, 1999,

       statement is not admissible and the Administrative Complaint will be voluntarily dismissed.

   17. Based upon the facts proved in this case and the discussion of the law contained in Petitioner's Proposed Recommended Order, it has been proved that Mr. Robinson's Miranda rights were not violated when he gave his statement of April 13, 1999. Therefore, pursuant to the stipulation of the parties 4/, the April 13, 1999, statement is admitted in evidence and Mr. Robinson should voluntarily relinquish his certificate.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that a final order be entered by the Department of Law Enforcement, Criminal Justice Standards and Training Commission, requiring that Tarence Robinson voluntarily relinquish his certification within 30 days of entry of the final order and provided, that should he fail to do so, his certificate be revoked.

DONE AND ENTERED this 2nd day of April, 2003, in Tallahassee, Leon County, Florida.

LARRY J. SARTIN

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 2003.

ENDNOTES

1/ The statement at issue in this case was actually made on April 13, 1999, and not April 13, 2000. This error in the Administrative Complaint, however, was effectively waived by Respondent when Respondent entered into a Pre-Hearing Stipulation and Contingent Settlement Agreement discussed, infra.

2/ The record does not reflect why it took almost a year from the time that Mr. Robinson requested a formal hearing for his request to be filed with the Division of Administrative Hearings.

3/ An Amended Notice of Hearing by Video Teleconference was issued February 11, 2003, changing the location of the hearing from Miami, Florida, to sites in Miami and Tallahassee, Florida, which were to be connected by video teleconferencing.

4/ Given the stipulation of the parties, the question of whether Mr. Robinson's April 13, 1999, statement would be admissible in this proceeding despite the fact that it might not be admissible in a criminal proceeding has not been addressed.

COPIES FURNISHED:

Joseph S. White Assistant General Counsel

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32301

Tarence Robinson

13990 Northeast 5th Avenue North Miami, Florida 33161

Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

Rod Caswell, Program Director Division of Criminal Justice

Professionalism Services

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

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: 02-004321PL

Orders for Case No: 02-004321PL