STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

DENYING MOTION FOR RELIEF FROM JUDGMENT ORDER

On August 22, 2007, a Recommended Order was entered finding that Respondent, Peter E. Wicher's, sworn testimony that he was conducting a criminal investigation, when he clearly was not authorized to do so under department protocol, and his improper use of the NCIC/FCIC data bank were adequate demonstrations of "failure to maintain good moral character" required of law enforcement officers and recommending that Respondent's law enforcement certification be disciplined.

On May 14, 2008, Petitioner, Florida Department of Law Enforcement, Criminal Justice Standards Commission, entered a Final Order, and, then five days later, on May 19, 2008, entered an Amended Final Order that "set aside" the Final Order and remanded the case to the Division of Administrative Hearings for

consideration of Respondent's Motion for Relief of Judgment Order filed with the Criminal Justice Standards Commission on March 14, 2008.

In Respondent's motion, he prays that "the judgment of this tribunal be set aside or in the alternative that this court hold an evidentiary hearing to determine the basis for this request."

Following remand, this matter came on for consideration on Respondent's Motion for Relief of Judgment Order without hearing on July 17, 2008. The undersigned has considered the referenced motion, the Sworn Statement of Michael Laughead taken on September 26, 2007, Petitioner's Response to Respondent's Motion for Relief from Judgment of Order, Response to Petitioner's Reply, Petitioner's Second Response to Respondent's Motion for Relief from Judgment of Order, the three-volume Transcript of the final hearing, the Recommended Order, and other pleadings and exhibits.

FINDINGS OF FACT

1. As it relates to this case, the testimony of Michael Laughead given at the final hearing and in his referenced sworn statement is remarkably similar. As such, it is cumulative and does not impeach Joseph Esposito any more than did the testimony given at the final hearing.

2. Even though the sworn statement was taken in September 2007, there is no showing that any additional

   information that is contained in the sworn statement that could possibly have an evidentiary impact on the case was not available at the time Michael Laughead gave testimony at the final hearing.

3. As the trier of fact, the evidentiary information contained in the sworn statement would not persuade me to change any of the Findings of Fact, Conclusions of Law, or Recommendations contained in the Recommended Order.

4. Respondent's admitted personal conduct in pursuing a purported "criminal" investigation in a matter in which he had a compelling personal interest, in contravention of the Osceola County Sheriff's Office investigation protocol, and his admitted misuse of the NCIC/FCIC data bank, are the bases for the recommended disciplining of his law enforcement certification.

5. As mentioned in the Recommended Order, the testimony of Joseph Esposito and his associates is afforded little credibility and was not the source of Findings of Fact upon which the recommended discipline was predicated. For Respondent, it is, perhaps, unfortunate that the Osceola County Sheriff's Office deemed Esposito's complaints credible and initiated an internal investigation, but Respondent's unauthorized "criminal" investigation and use of the NCIC/FCIC data bank pre-dated the internal investigation.

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearing has jurisdiction as a result of the remand of this matter contained in the Amended Final Order dated May 19, 2008.

7. A rehearing or new trial is warranted where: (1) it appears that the evidence is such that will probably change the result if a new trial is granted; (2) the evidence has been discovered since the trial; (3) the evidence could not have been discovered before the trial by the exercise of due diligence;

(4) the evidence is material to the issue; and (5) the evidence is not merely cumulative or impeaching. Bray v. Electronic Door-Lift, Inc., 558 So. 2d 43 (Fla. 1st DCA 1989); Dade

National Bank of Miami v. Kay, 131 So. 2d 24 (Fla. 3d DCA 1961); E.I. DuPont de Nemours & Co. v. Native Hammock Nursery, 698

So. 2d 267 (Fla. 3d DCA 1997). Clearly, Respondent's Motion for Relief of Judgment Order does not meet this standard.

RECOMMENDATION

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

RECOMMENDED that Respondent's Motion for Relief of Judgment Order be DENIED and that the previously-entered Recommended Order be accepted.

DONE AND ENTERED this 17th day of July, 2008, in Tallahassee, Leon County, Florida.

S

JEFF B. CLARK

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 17th day of July, 2008.

COPIES FURNISHED:

Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Frank J. Bankowitz, Esquire

207 East Livingston Street Orlando, Florida 32801

Michael Crews, Program Director Division of Criminal Justice

Professionalism Services

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

Michael Ramage, General Counsel 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: 07-000681PL

Orders for Case No: 07-000681PL