Findings Of Fact At all times pertinent to the allegations concerned herein, Respondent, William M. Floyd has been certified as a corrections officer in Florida under certificate number C- 7585, dated May 23, 1980. He had been certified prior to that time under another Commission procedure. The Commission is the state agency responsible for certifying law enforcement and corrections officers in Florida. Throughout the majority of the year 1986, Respondent was employed as a corrections officer at the Department of Corrections' Tampa Corrections Work Release Center. When he was arrested for grand theft during 1986, he advised his boss that he intended to plead not guilty. Because of his prior eight years of good work and based on his representations, he was not discharged and was allowed to keep his employment. Approximately six months later, Respondent was hospitalized for what his doctors thought was cancer of the spine. While he was in the hospital, his attorneys convinced him that due to his poor health, it would be to his advantage to plead nolo contendere and avoid the stress of a trial and thereafter negotiated an arrangement with the state attorney that in exchange for the plea of nolo contendere, adjudication of guilt would be withheld and Respondent would be placed on two years probation. Respondent entered that plea in open court on November 10, 1986 in the Circuit Court of Hillsborough County and was placed on two years probation. He was promised that at the successful completion of his term of probation, his record would be sealed from the public but not from law enforcement officials. Respondent is looking forward to that happening. After his court appearance, Respondent resigned from his position as a corrections officer with the Department of Corrections, he claims, due to his poor health. On December 4, 1986, the Department of Corrections advised the Petitioner, Commission, however, that Respondent had resigned his position due to the fact that he was placed on two years probation for grand theft. The documentation in question was not presented at the hearing, however, but the basis for Respondent's resignation is irrelevant. The seminal issue here is Respondent's plea of nolo contendere to a felony and of that there is no question. Respondent is not now employed as a corrections officer or in any law enforcement capacity. As a result, he does not need his certification. However, because of the nature of the charges against him, and what he believes is a lack of culpability on his part, (not further explained); and because he may some day again want to work as a corrections officer, he wants to keep his certification.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the certification of Respondent, WILLIAM M. FLOYD, as a corrections officer be revoked. RECOMMENDED this 23rd day of January, 1989 at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of January, 1989. COPIES FURNISHED: Joseph S. White, Esquire Assistant General Counsel Post Office Box 1489 Tallahassee, Florida 32302 William M. Floyd Post Office Box 1084 Gibsonton, Florida 33534 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Daryl McLaughlin, Executive Director Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue is whether, pursuant to section 112.3173, Florida Statutes (2015),1/ Petitioner forfeited his Florida Retirement System (“FRS”) Investment Plan account by entering a nolo contendere plea to two counts of violating section 893.13(2)(a)1., Florida Statutes, a second-degree felony.
Findings Of Fact The Events Giving Rise to this Proceeding Mr. Combs began working for DOC on May 25, 2001, as a Correctional Officer Level 1 at the Union Correctional Institution (“Union Correctional”) in Raiford, Florida. Union Correctional is a maximum security facility housing approximately 2,000 inmates, and Mr. Combs assisted with their care and custody. In January of 2006, Mr. Combs earned a promotion to Correctional Officer, Sergeant. While his responsibilities were very similar to those of his previous position, Mr. Combs was now supervising other correctional officers. In October of 2011, Mr. Combs earned a promotion to Correctional Officer, Lieutenant, and was responsible for supervising 50 to 70 correctional officers at Union Correctional. In April of 2013, Mr. Combs earned a promotion to Correctional Officer, Captain, and transferred to Florida State Prison in Starke, Florida. A captain is the highest ranking correctional officer on a given shift, and Mr. Combs supervised approximately 50 correctional officers at a time, including sergeants and lieutenants. Like Union Correctional, Florida State Prison is a maximum security facility housing approximately 2,000 prisoners. A colonel manages Florida State Prison, and it has two separate units. One of those units is a work camp housing lower- custody inmates who may work outside the facility, and the main prison is the other unit. Each of the units is run by its own major. In February of 2015, Mr. Combs was promoted to Major and took charge of the work camp at Florida State Prison. At some point in 2014 and prior to his promotion to Major, Mr. Combs had begun taking Oxycodone recreationally. Mr. Combs typically purchased one Oxycodone pill three to four times a week, and Dylan Hilliard (a Correctional Officer 1 at Florida State Prison) was Mr. Combs’ primary source of Oxycodone. Mr. Hilliard usually worked at the main prison, but he occasionally worked at the work camp. Mr. Combs knew Mr. Hilliard because of their employment with DOC. Mr. Combs purchased Oxycodone from Mr. Hilliard at the latter’s home in Lawtey, Florida. However, some transactions occurred in Mr. Combs’ state-issued housing on the grounds of Florida State Prison. Mr. Hilliard charged Mr. Combs $35 for an Oxycodone pill, and that was a discount from the $38 price Mr. Hilliard charged others. Mr. Combs allowed his subordinates (Sergeants Jesse Oleveros and Evan Williams) to leave Florida State Prison during their shifts in order to purchase illegal drugs from Mr. Hilliard. After returning from their transactions with Mr. Hilliard, Mr. Oleveros and Mr. Williams would give Mr. Combs an Oxycodone pill free of charge. Operation Checkered Flag was a joint task force led by the Bradford County Sheriff’s Office, and its purpose was to arrest individuals involved with the distribution and use of illegal drugs. The authorities arrested Mr. Hilliard after he engaged in an illegal drug transaction with an undercover agent from the Florida Department of Law Enforcement. A subsequent search of Mr. Hilliard’s cell phone revealed text messages between Mr. Hilliard and several other DOC employees, including Mr. Combs. Mr. Hilliard referred to Mr. Combs as “Chicken-Hawk” or “Hawk” in those text messages, and the two of them used car part terminology as a code for different milligram sizes of Oxycodone. Operation Checkered Flag ultimately resulted in the arrest of 10 DOC employees. The authorities arrested Mr. Combs on July 1, 2015, based on allegations that he had committed six felonies relating to the alleged unlawful and illegal purchase and distribution of Oxycodone. DOC fired Mr. Combs on approximately July 1, 2015. Mr. Combs initially denied all of the allegations. However, after spending nearly 56 days in jail, Mr. Combs reached an agreement with the State Attorney’s Office in Bradford County that called for his criminal charges to be reduced in exchange for his cooperation with Operation Checkered Flag. During an interview on August 20, 2015, with members of Operation Checkered Flag, Mr. Combs admitted that he had purchased Oxycodone from Mr. Hilliard. In addition, Mr. Combs admitted that on six or seven occasions he allowed Mr. Oleveros and Mr. Williams to leave the prison grounds so that they could purchase Oxycodone from Mr. Hilliard. The State Attorney’s Office in Bradford County chose to dismiss most of the charges against Mr. Combs. The Information ultimately filed against Mr. Combs set forth two counts alleging that he violated section 893.13(2)(a)1., by illegally purchasing Oxycodone on March 23, 2015, and March 31, 2015. Those purchases occurred approximately 10 miles from Florida State Prison at Mr. Hilliard’s residence in Lawtey, Florida. Neither Mr. Combs nor Mr. Hilliard was on duty during those transactions. On August 25, 2015, Mr. Combs pled nolo contendere. The Bradford County Circuit Court entered judgment against Mr. Combs based on the two violations of section 893.13(2)(a)1., but withheld adjudication. All of the conduct underlying Mr. Combs’ nolo contendere plea occurred while he was employed by DOC. The SBA Determines that Mr. Combs Forfeited his FRS Benefits At all times relevant to the instant case, Mr. Combs was a member of the FRS. The FRS is the legislatively-created general retirement system established by chapter 121, Florida Statutes. See § 121.021(3), Fla. Stat. The SBA is the governmental entity that administers the FRS Investment Plan, a defined retirement benefits contribution plan. § 121.4501(1), Fla. Stat. Via a letter dated August 3, 2015, the SBA notified Mr. Combs that a hold had been placed on his FRS account due to the criminal charges. As a result, no distribution of employer contributions from Mr. Combs’ account would be permitted until the SBA had evaluated the final disposition of those criminal charges. Via a letter dated September 3, 2015, the SBA notified Mr. Combs that he had forfeited his FRS benefits as a result of his nolo contendere plea. In support thereof, the SBA cited section 112.3173, Florida Statutes, which provides for the forfeiture of a public employee’s FRS retirement benefits upon the entry of a nolo contendere plea to certain types of offenses. The SBA’s letter closed by notifying Mr. Combs of his right to challenge the SBA’s proposed action through an administrative hearing. Mr. Combs requested a formal administrative hearing and asserted that the crimes for which he was convicted did not fall within the scope of section 112.3173(2)(e). In other words, Mr. Combs argued that his convictions were not associated with his employment at DOC and thus did not amount to a violation of the public trust. Testimony Adduced at the Final Hearing Mr. Combs testified that he was responsible for the work camp and the supervision of the correctional officers assigned there. He also testified that he would occasionally supervise correctional officers who normally worked in the main prison. Mr. Combs testified that Mr. Hilliard was his primary source of Oxycodone and that Mr. Hilliard occasionally worked at the work camp. Mr. Combs was aware that two Florida State Prison employees who worked directly under him (Sergeant Jesse Oleveros and Sergeant Evan Williams) were purchasing Oxycodone from Mr. Hilliard. Mr. Combs testified that he allowed Mr. Oleveros and Mr. Williams to leave Florida State Prison grounds six or seven times in order to purchase Oxycodone from Mr. Hilliard. Mr. Combs testified that Mr. Oleveros and Mr. Williams would give him an Oxycodone pill after returning from their transactions with Mr. Hilliard. Mr. Combs acknowledged during his testimony that DOC policy prohibits correctional officers from leaving prison grounds during their shift. Mr. Combs acknowledged that it was a violation of DOC policy and Florida law to allow a correctional officer to leave prison grounds during a shift for the purpose of purchasing illegal narcotics. Mr. Combs also acknowledged that it was a violation of DOC policy and Florida law to allow a correctional officer to be on prison grounds with illegal narcotics. Finally, Mr. Combs acknowledged that as a sworn officer with the Department of Corrections, he had an obligation to report any criminal activity committed by a correctional officer working at Florida State Prison, regardless of whether that correctional officer reported to him. Findings of Ultimate Fact An examination of the circumstances associated with Mr. Combs’ Oxycodone purchases from Mr. Hilliard demonstrates that there is a nexus between Mr. Combs’ employment as a correctional officer with DOC and his commission of the crimes to which he pled nolo contendere. For instance, Mr. Combs came to know his primary source of Oxycodone (Mr. Hilliard) through their mutual employment with DOC. Indeed, Mr. Combs supervised Mr. Hilliard when the latter was assigned to the work camp at Florida State Prison. Also, Mr. Combs knew that these transactions were illegal. As noted above, he and Mr. Hilliard used a code based on car part references to disguise the actual subject of their communications. Contrary to DOC policy and Florida Law, Mr. Combs allowed two of his subordinates (Mr. Oleveros and Mr. Williams) to leave Florida State Prison during their duty shifts in order to purchase illegal drugs from Mr. Hilliard. Mr. Combs would then receive a free pill from Mr. Oleveros and Mr. Williams. Mr. Hilliard sold Oxycodone to Mr. Combs at a reduced price. It is reasonable to infer that Mr. Combs received this discount due to his high-ranking position at Mr. Hilliard’s place of employment and because Mr. Combs facilitated Mr. Oleveros and Mr. Williams’ purchases of Oxycodone from Mr. Hilliard. Mr. Combs willfully violated DOC policy and Florida law by allowing correctional officers to leave prison grounds during a shift for the purpose of purchasing illegal narcotics. Mr. Combs knowingly violated his obligation as a sworn correctional officer by not reporting the criminal activity committed by Mr. Hilliard. Mr. Combs defrauded the public from receiving the faithful performance of his duties as a correctional officer. The public had a right to expect that one of its employees would not purchase drugs from someone he supervised. The public also had a right to expect that Mr. Combs would not use his authority at Florida State Prison to facilitate Mr. Hilliard’s illegal drug sales to other DOC employees. In addition, the public had a right to expect that Mr. Combs would not engage in illegal transactions on the grounds of Florida State Prison. Mr. Combs realized a profit, gain, or advantage through the power or duties associated with his position as a Major at DOC. Specifically, Mr. Combs satisfied his Oxycodone habit through purchases made from a DOC employee who he supervised. Also, Mr. Combs used his position to facilitate other sales by Mr. Hilliard, and Mr. Combs’ assistance led to him receiving free Oxycodone and a discounted price on his Oxycodone purchases. The findings set forth above in paragraphs 49 through 57 are the only ones needed to establish a nexus between Mr. Combs’ public employment and the two counts to which he pled nolo contendere. That nexus is evident from Mr. Combs’ testimony, Mr. Combs’ Responses to the SBA’s Requests for Admissions, and the Stipulated Facts. It was not necessary to consider the exhibits to which Mr. Combs raised objections, i.e., the arrest warrant, the warrant affidavit, and the audio recordings.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the State Board of Administration issue a final order finding that Petitioner was a public employee convicted of specified offenses that were committed prior to retirement, and that pursuant to section 112.3173 he has forfeited all of his rights and benefits in his Florida Retirement System Investment Plan account, except for the return of his accumulated contributions as of the date of his termination. DONE AND ENTERED this 10th day of May, 2016, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of May, 2016.
The Issue This is a rule challenge proceeding in which the Petitioner originally sought a determination pursuant to Section 120.56, Florida Statutes, that Rule 33-6.006, Florida Administrative Code, was an invalid exercise of delegated legislative authority. This case began with the filing of a Petition For Administrative Determination on December 23, 1986. On March 26, 1987, this Hearing Officer issued a Final Order of Dismissal which granted the Department's motion to dismiss. The Final Order Of Dismissal concluded that the Petitioner had failed to allege standing to challenge Subsections (2) through (9) of Rule 33-6.006, because his allegations were insufficient to show that his substantial interests were affected by those subsections of the rule. The Final Order Of Dismissal went on to conclude that the Petitioner had sufficiently alleged standing to challenge Subsection (1) of the challenged rule, but also concluded that the Petitioner had failed to sufficiently allege facts sufficient to show the invalidity of the rule. In this regard the Final Order Of Dismissal specifically stated at paragraph 12: In order to sufficiently allege the invalidity of an existing rule, a rule challenge petition must assert, at a minimum, that the challenged rule is in some specified way a departure from statutory authority granted to the rule enacting agency by the Legislature. Where, as here, the rule is nothing more than a repetition of the statutory provision, the rule may be unnecessary, but it is not an invalid exercise of delegated legislative authority because it does not in any way depart from the statutory mandate. Because of the identical provisions of the subject rule language and the applicable statute, the Petitioner has not, and cannot, allege any facts sufficient to show that the rule is an invalid exercise of delegated legislative authority because he has not, and cannot, allege any differences between the statutory mandate and the rule mandate. The Petitioner sought appellate review of the Final Order Of Dismissal. In Diaz v. Florida Department of Corrections, 519 So.2d 41 (Fla. 1st DCA 1988), appeal dismissed, 525 So.2d 877 (Fla. 1988), the First District Court of Appeal issued an opinion which primarily addressed the constitutionality of the statutory authority for the challenged rule. In that opinion the court concluded as follows: Accordingly, we declare section 945.10(2) Florida Statutes (1985), to be unconstitutional. The case is remanded to the DOAH hearing officer for further proceedings to determine the validity of Rule 33-6.006(1) in light of this opinion. On March 21, 1988, the appellate court issued its mandate and the case was once again before the Hearing Officer for further proceedings consistent with the court's opinion. The appellate court decision left undisturbed the conclusion that the Petitioner lacks standing to challenge Subsections (2) through (9) of Rule 33-6.006. Accordingly, the issue on remand is limited to a determination of the validity of Subsection (1) of Rule 33-6.006, Florida Administrative Code. As discussed in the conclusions of law, that determination involves a consideration of statutory amendments which took effect after the appellate court decision and were, therefore, not considered by the appellate court. At the final hearing, both parties presented the testimony of witnesses and the Petitioner also offered several exhibits. During the course of the hearing the Petitioner was granted leave to file two late exhibits consisting of selected portions of the Department's Policy and Procedure Directives and selected portions of the Florida State Prison Institutional Operating Procedures. The Respondent was granted leave to file post-hearing objections to any late-filed exhibits. The late-filed exhibits were submitted by the Petitioner and the Respondent promptly filed objections to same. Upon consideration, the objections to the exhibits are overruled and the late-filed exhibits are received as part of the record in this case. Following the hearing, a transcript of tide proceedings at hearing was also filed. Thereafter, both parties filed timely proposed final orders containing proposed findings of fact and conclusions of law. The parties' proposed final orders have been carefully considered during the preparation of this final order. Specific rulings on all findings of fact proposed by the parties are contained in the Appendix which is attached to and incorporated herein.
Findings Of Fact Based on the stipulations of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at the hearing, I make the following findings of fact. Findings stipulated by the parties Florida Administrative Code Chapters 1S, 22I, 28, and 33, as found in the Florida Administrative Code Annotated, through the April 1988 supplement, are true and correct copies of those rule chapters. The Petitioner's current address is: Enrique J. Diaz Inmate Number 065599 Florida State Prison Post Office Box 747 Starke, Florida 32091 The Respondent's name and address is: Florida Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32301 The Department rule on which an administrative determination is sought is Rule 33-6.006(1), Florida Administrative Code, which states: No inmate of any institution, facility, or program shall have access to any information contained in the files of the Department. The statutory provisions on which the subject Department rule is based are Sections 944.09 and 945.10, Florida Statutes. The Petitioner's interests are substantially affected by Rule 33- 6.006(1), Florida Administrative Code, in that: He is a convicted felon, lawfully confined in the custody of the Department. He wishes to obtain from the Department, for the lawful cost of copying, documents he was once given by the Department, but which he no longer has in his possession, including, but not limited to: Institutional grievances filed by him. Grievance appeals filed by him. Disciplinary Reports issued against him. Disciplinary Report Worksheets issued against him. He wishes to obtain from the Department, for the lawful cost of copying, documents which are public records and which can be obtained by anyone from sources outside the Department, including, but not limited to: His Judgment and Sentence forms. His Uniform Commitment to Custody form. He wishes to obtain from the Department documents which are public records and which are normally provided to any member of the public requesting same, including, but not limited to: The Department's annual report. Ordinary records kept in the normal course of business, such as might be kept by any state agency. He had been refused any and all documents from the Department because of Rule 33-6.006(1), Florida Administrative Code. FINDINGS BASED ON EVIDENCE AT HEARING Inmates are given copies of any disciplinary reports they receive at the time they receive the disciplinary report, plus the results of any subsequent disciplinary hearing. These copies are carbon copies rather than photocopies. Inmates are given answers to inmate requests, institutional grievances, and grievance appeals they file. These answers are given to the inmate with a copy of his original filing. The act of giving an inmate another, identical, copy of any disciplinary report, disciplinary worksheet, inmate request, institutional grievance, or grievance appeal he had previously been given does not create a security problem. The act of giving an inmate another, identical, copy of his Judgment and Sentence forms, which are public documents contained in the files and records of the appropriate Clerks of Court, does not create a security problcm. Copies of the above documents are routinely made for attorneys and the news media. The actual cost of providing these copies is charged. The Department would not provide copies of the above documents if it were known the copies would be given to an inmate. The Department's Administrative Gain Time Manual is made available to the news media, the public, and attorneys. The Department refuses to make this manual available to inmates. The Florida State Prison Institutional Operating Procedures (IOPs) are public records, but the Department refuses to make copies of them for individual inmates because of Rule 33- 6.006(1), even though some of the IOPs are in the prison law library. The Department's Policy and Procedure Directives are freely available to the public, but the Department refuse to make them available to inmates. Florida State Prison, where the Petitioner is incarcerated, has approximately 1164 inmates. In accordance with state statute, the institution keeps a file on each inmate. Each file consists of from two to eighteen legal size folders of documents. The files include such material as investigation reports, disciplinary reports, special review information, presentence reports, psychological and medical reports, detainers, gain time, and other information. There are three people in the Florida State Prison records department responsible for inmate files. It takes the FSP record department three or four hours daily to file newly received documents. The FSP records department also has other duties, such as posting gain time, cell changes, and disciplinary reports. The FSP records department has received few, if any, requests for information from the public or the news media. Most of their requests come from attorneys. The attorneys' requests for information place additional burdens on the small FSP records department staff. By way of example, it took approximately two hours to "screen" the Petitioner's file at FSP and his file is smaller than that of 75 or 80 per cent of the inmates. Florida State Prison has only three photocopy machines for the entire institution. The machines are used extensively and are subject to frequent malfunctions. The Admissions and Release office maintains the official file on each inmate at the central office. Currently, there are 33,000 inmates in custody. The primary reason that the Admissions and Release office does not want inmates to have hands-on access to their central office files is to maintain the integrity of the record. The Department has had to use the files in court to defend and substantiate the calculations for release dates. The Admissions and Release office has denied all inmate requests for copies of information from its files. The Admissions and Release office is currently shorthanded. Whenever there is a new court decision affecting inmate rights or sentences, the office is flooded with correspondence and requests from inmates. The office has already received some grievances and requests from inmates concerning the appellate court decision in this case. The office expects a flood of requests if inmates are given access to Department records. During the past four years the Admissions and Release office has had very few requests for access to its files from the news media or the general public. The Department's central files contain access codes for the Department's computers. If inmates could obtain the access codes, it would compromise the integrity of the Department's computer records. Before release of any information from the Department's central office files, the information is screened for confidential information. Even documents which appear to be facially innocent have to be read to determine whether they contain information about informants or victims. The Department is concerned that if inmates are allowed broad access to Department files, such access will create security problems. But the Department is even more concerned about the sheer volume of requests that would result from allowing broad access and the impact the expected volume of requests would have on Department staff and copying equipment. The Department is also generally of the view that it is virtually impossible to write a rule which would describe which documents should be available for inmate access and which should not. Rather, the Department is of the view that decisions regarding release of documents to inmates must be made on a case by case basis after review of each document in each file.
Findings Of Fact The Petitioner is presently incarcerated at Sumter Correctional Institution near Bushnell, Florida. Sumter Correctional Institution is a prison maintained by the Florida Department of Corrections. Petitioner was convicted for two separate robbery offenses based upon guilty pleas. He was sentenced to a prison term of ten years in connection with each conviction, the sentences to run concurrently. Petitioner is presently incarcerated based upon these convictions. Petitioner was interviewed by an Examiner of the Florida Parole and Probation Commission for the purpose of establishing a recommended presumptive parole release date on February 26, 1981. Under rules of the Parole and Probation Commission then in effect, the Examiner was to consider the gravity of the offense for which the Petitioner was sentenced, establish a "salient factor score" and consider any aggravating or mitigating circumstances. The Examiner classified the offense as "high-robbery" and set the salient factor score at "1." Under Commission rules then in effect, the guidelines for a time range ("matrix time range") for that offense characteristic and salient factor score was fourteen to nineteen months. The Examiner recommended setting the presumptive parole release date at the longest period within the time range (nineteen months) and additionally recommended that several aggravating circumstances be considered. These circumstances were the existence of a concurrent sentence for robbery for which the Examiner recommended an additional nineteen months, the fact that a gun was used in one of the robberies for which the Examiner recommended an additional six months, and the fact that a knife was used in the other for which the Examiner recommended an additional six months. The Examiner thus recommended that the Petitioner serve a total of fifty months in prison and that his presumptive parole release date be set at March 13, 1984. Petitioner requested review of this recommendation before the Parole and Probation Commission. The Commission took final action on the review request on April 1, 1981, and affirmed the recommendation. Commission Rule 23-19.01(5), Florida Administrative Code, has been amended since it was applied to the Petitioner. The rule as it existed when the Petitioner's presumptive parole release date was established provided: If present offense of conviction involved multiple separate offenses, the severity level shall be based on the most serious of the offenses, and the other offenses may be used as aggravating factors. This shall be applied to both consecutive and con- current sentences. This rule continues to substantially affect Petitioner since it provided the basis for the setting of his presumptive parole release date. In adopting this rule, the Commission sought to develop criteria to predict the likelihood of successful parole. The presence of multiple sentences for multiple criminal behavior was considered an important factor in determining the likelihood of a successful parole experience.
The Issue Should Petitioner discipline Respondent for her acts as a correctional officer in association with an inmate?
Findings Of Fact In response to requests for admissions, Respondent admitted the following: The Respondent was certified by the Criminal Justice Standards and Training Commission on July 6, 1992, and was issued correctional number 94229. Between June 1 and July 31, 1994, the Respondent was employed as a Correctional Officer with the North Florida Reception Center. On October 16, 1995, during an interview with Inspector H. McBride, the Respondent denied knowing Inmate Dean Richardson. (D) On October 16, 1995, during an interview with Inspector H. McBride, the Respondent denied knowing Toyia Kelly. E) On March 6, 1996, Respondent resigned her position at North Florida Reception Center. Between June 1, 1994 and July 31, 1994, Inmate Dean Richardson was committed to the North Florida Reception Center as a permanent inmate. In that period Respondent came in contact with Mr. Richardson in her capacity as a correctional officer and his capacity as an inmate at North Florida Reception Center. Their contacts occurred while Respondent was on duty as a correctional officer. In a conversation that took place between Respondent and Mr. Richardson in a recreation room within the prison, Respondent told Mr. Richardson that she was "having a problem moving." Mr. Richardson responded by offering to give Respondent money. At first Respondent declined the offer. A week to two weeks later after Mr. Richardson "pushed the issue," Respondent agreed to accept the money. Mr. Richardson had approached Respondent about a dozen times before Respondent was willing to accept the money. Under the terms of their arrangement, Respondent gave Mr. Richardson a post office box address to send the money and a name at that address. The name was Toyia Kelly. In furtherance of the agreement between Mr. Richardson and the Respondent, Mr. Richardson caused a $200 draft from his inmate bank fund to be sent to Toyia Kelly on June 8, 1994, at the address Respondent had provided . After Mr. Richardson sent the $200, he asked Respondent if Respondent had received the money. She answered "no." This conversation took place within the institution where Mr. Richardson was housed. When Respondent told Mr. Richardson she did not receive the $200, Mr. Richardson told Respondent that he would send more money. Mr. Richardson did send more money, but this time he sent the money to a different post office box than before. Respondent had provided Mr. Richardson the new post office box address. On June 24, 1994, Mr. Richardson withdrew $150 by draft from his inmate bank fund and paid it to the order of Toyia Kelly at the new post office box address. Mr. Richardson did not confirm with Respondent whether Respondent had received this $150 that had been paid directly to Toyia Kelly. Of his own volition Mr. Richardson determined to send an additional $150 by a draft from his inmate bank fund. Again this was paid to the order of Toyia Kelly at the second post office box address that had been provided by Respondent. This draft was made on July 11, 1994. On this occasion Mr. Richardson asked Respondent if she had received the second $150 draft. In response Respondent nodded her head in the affirmative.
Recommendation Upon consideration the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered which revokes Respondent's correctional certificate number 94299. DONE AND ENTERED this 18th day of November, 1997, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 November, 1997. COPIES FURNISHED: Karen D. Simmons, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Sandra Griffin 2852 Wayne Drive Lake City, Florida 32055 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact Standing. The Petitioner, Roger Smith, is an inmate in the custody of the Department of Corrections. The Petitioner is subject to the rules of the Respondent, the Florida Parole Commission, including the Challenged Rule. The Petitioner is serving a "parole eligible sentence." The Petitioner's eligibility for parole has been determined by the Respondent. The Petitioner was convicted of the offense of escape and, therefore, the Respondent applied the Challenged Rule to the Petitioner. The Respondent. Sections 947.07 and 947.13, Florida Statutes, authorize the Respondent to adopt rules governing the parole of inmates in the State of Florida. Among other things, Section 947.13, Florida Statutes, authorizes the Respondent to determine who is placed on parole and to fix the time and conditions of parole. Pursuant to Sections 947.07 and 947.13, Florida Statutes, the Respondent promulgated the Challenged Rules. Rule 23-21.018(1) and (7), Florida Administrative Code. Rule 23-21.018(1) and (7), Florida Administrative Code, provides the following: Vacation of presumptive or effective parole release date: The exiting of an inmate from the incarceration portion of his sentence, which shall include but not be limited to bond, escape, parole or MCR release, expiration of sentence, or transfer to a mental health facility, shall vacate any established presumptive parole release date. Any subsequent return to incarcerations will require an initial interview to establish a presumptive parole release date. Provided, however, inmates returning to court for modification of a previously imposed sentence or as witnesses shall not have their presumptive parole release dates vacated. Inmates returning to courts outside of Florida's jurisdiction, i.e, Federal or other state, shall not have their presumptive parole release dates vacated. However, information resulting from disposition of cases in court may be used as new information in accordance with applicable law and these rules. Inmates transferred to a Mentally Disordered Sexual Offender Program shall not have their presumptive parole release dates vacated. . . . . Conviction for crimes committed while incarcerated: Escape or any other crime committed during incarceration with an ensuing conviction and sentence vacates any previously established presumptive parole release date and shall cause the inmate to be considered a new admission. If the inmate is found to be eligible for consideration for parole, the Commission shall aggregate.
Findings Of Fact Petitioners and Respondent have stipulated to the following facts: The three petitioners are inmates at Union Correctional Institution, Raiford, Florida, in the custody of the Department of Corrections. All three of the petitioners have had their PPRD's established by the respondent-commission as follows: In June of 1982, Mr. Piccirillo's PPRD was established by the commission to be September 30, 1986. In January of 1982, Mr. Adams' PPRD was established by the commission to be November 11, 1991. In December of 1982, petitioner Hemming's PPRD was established by the commission to be September 29, 1993. Subsequent to the commission having established their PPRD's, all three of the petitioners have been transferred from one Florida penal institution to another state institution as follows: Mr. Piccirillo was transferred from Polk Correctional Institution to Union Correctional Institution on August 18, 1982. Mr. Adams was transferred from Polk Correctional Institution to Union Correctional Institution on August 18, 1932. Mr. Hemming was transferred from Avon Park Correctional Institution to Union Correctional Institution on February 16, 1983. The petitioners were not transferred to Union Correctional Institution because of any unsatisfactory institutional conduct at their former institutions. Petitioners are currently scheduled by the commission for biennial interviews to review their established PPRD's as follows: Mr. Piccirillo is scheduled for a biennial interview in March of 1984. Mr. Adams is scheduled for a biennial interview in October of 1983. Mr. Hemming is scheduled for a biennial interview in September of 1984. The following additional findings are made from evidence presented at the hearing: The respondent-commission has not made a finding that any of the petitioner's institutional conduct has been unsatisfactory under the challenged rule nor has respondent extended their PPRD's or refused to authorize their EPRD's. In applying the challenged rule, the fact that an inmate has been transferred to a higher custody or higher level institution is only considered to be unsatisfactory institutional conduct where the commission receives documentation evidencing institutional misconduct as the basis for the transfer. Petitioners transfers from other institutions to Union Correctional Institution would not be considered unsatisfactory institutional conduct under the challenged rule because there is no documentation of institutional misconduct which led to these institutional transfers.
Findings Of Fact Incorporated in Finding of Fact 1. Rejected as a Conclusion of Law and not a Finding of Fact. 3-4. Incorporated in Finding of Facts 2-4. Incorporated in Finding of Facts 9-10. Incorporated in Finding of Facts 5-6. Incorporated in Finding of Fact 7. Incorporated in Finding of Fact 11. Incorporated in Finding of Fact 12. Rejected as argument and not a Finding of Fact. COPIES FURNISHED: Stanley Blanding, #036207 Liz Cloud, Chief Mark Dingle, #073356 Bureau of Administrative Code William Roberts, #908378 1802 The Capitol Virgil Page, #073743 Tallahassee, Florida 32301 Union Correctional Institution P. O. Box 221 Raiford, Florida 32803 William Joel Keel, #060263 Carroll Webb, Exec. Director Union Correctional Institution Administrative Procedures P. O. Box 221 Committee Raiford, Florida 32083 120 Holland Building Tallahassee, Florida 32301 Julia Forrester, Esquire Assistant Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida 32301 Louis A. Vargas, Esquire General Counsel Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32301 Louie Wainwright Secretary Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32301
Findings Of Fact At all times material hereto Petitioner was incarcerated at Union Correctional Institition within the custody and control of the Department of Corrections. On or about March 1, 1983, Petitioner submitted a request to be admitted to the Mutual Participation Program, also known as ''Contract Parole." Thereafter, Petitioner was considered for eligibility for that program by a classification specialist employed by the Department of Corrections and a parole examiner employed by the Parole and Probation Commission. On April 22, 1983, these two officials recommended against Petitioner's request based on Petitioner's "extensive criminal history," "history of drug abuse in the past," his escape from minimum custody while a patient at the Veteran's Administration hospital in Gainesville in December of 1979, and his involvement in a prison disturbance at Marion Correctional Institute in 1978. Chapter 23-20, Florida Administrative code, entitled Mutual participation Program was first adopted by Respondent on September 10, 1981. Respondent conducted rulemaking proceedings in 1982 which resulted in amendments to various portions of Chapter 23-20, Florida Administrative Code. These amendments became effective October 1, 1982. During the course of the rulemaking proceeding, Respondent published notice of the proposed changes in the Florida Administrative Weekly and, in addition, forwarded copies of the proposed changes to all Department of Corrections offices, including each correctional institution. The record in this cause is unclear as to whether these proposed changes were ever posted in the law library or other office at Union Correctional Institution. Petitioner contends that he was never afforded notice of the proposed amendments to Chapter 23-20, Florida Administrative Code, and library officials at Union Correctional Institution do not specifically recall ever having seen such proposed amendments. There are no facts of record in this proceeding from which it could be concluded with any certainty whether any of the provisions of Chapter 23-20, Florida Administrative Code, either as it was initially adopted or as it was amended effective October 1, 1982, were applied to Petitioner's request for participation in that program.
