The Issue Whether on or about January 22, 1996, Respondent, Fidel DeLeon, did unlawfully attempt to commit a sexual battery upon Diane Smalley, a person twelve years of age or older, without the consent of Diane Smalley, by attempting to penetrate her vagina with his penis or by attempting to place his penis in union with the vagina and/or mouth of Diane Smalley, and in the process thereof used physical force and violence not likely to cause serious personal injury. Whether Respondent violated the provisions of Section 943.1395(6) and/or (7), Florida Statutes, and Rule 11B-27.0011(4)(a), Florida Administrative Code, in that the Respondent failed to maintain the qualifications established by Section 943.13(7), Florida Statutes, which require that law enforcement officers in the State of Florida have good moral character.
Findings Of Fact Respondent was certified as a law enforcement officer in Florida by the Criminal Justice Standards and Training Commission on December 7, 1990, and was issued certificate No. 113130. Respondent was employed with the Orange County Sheriff's Office on May 9, 1994. Respondent served as a road deputy during the relevant time-period, working the midnight shift. Dianne Smalley was born on January 7, 1953, and is a person twelve years of age or older. Smalley was employed by the Maitland Police Department as a dispatcher in January 1996, and worked the midnight shift. Smalley met and became acquainted with Respondent approximately a month prior to January 22, 1996. On January 21, 1996, Respondent and Smalley made plans to get together socially after Respondent got off duty. On January 22, 1996, at about two o'clock in the morning, Respondent went to the residence of Smalley and was invited in. When Respondent arrived at Smalley's residence, he was wearing his police uniform, which included a holstered gun. Respondent and Smalley socialized for about 30 minutes while in the residence. During the course of their conversation, Respondent told Smalley that he was married. After telling Smalley he was married, Respondent was asked to leave by Smalley. Respondent did not leave Smalley's residence at that point, but instead Respondent moved closer to Smalley who was sitting on the couch. Respondent pushed Smalley back on the couch, however, Respondent moved forward and kissed her on her neck. Respondent also rubbed his hands all over the body of Smalley. Smalley pushed away Respondent and told him that nothing was going to happen. She got up and walked toward the front door, expecting Respondent to leave. As Smalley moved from the dining room toward the front door, Respondent came up behind her and pushed Smalley back into the living room to where her body was bent forward over the arm of the couch. Respondent stood behind Smalley and, as she was bent over the couch, Respondent held her down by holding her arms and with the weight of his body. Respondent then tried to pull her pants down and pull up her shirt. Respondent unzipped his pants and pulled out his penis. Respondent rubbed his genitals against Smalley's posterior and placed his penis between her legs. Respondent simulated intercourse with Smalley. Respondent tried to put Smalley's hand on his penis but she resisted. Respondent asked Smalley to perform oral sex on him but she refused. Respondent tried to push Smalley's body down to perform oral sex on him, but was unable to because she locked her knees. Respondent then masturbated himself in Smalley's living room and ejaculated on the carpet in the living room. Respondent then let Smalley go and left the residence. During the course of the day, Smalley reported the incident to her roommate. Later that day, Respondent called Smalley on the telephone and apologized for what had happened. Smalley called the Orange County Sheriff's Office after viewing a news broadcast where a rape suspect, who looked similar to Respondent, had gained access to the victim's home by using a police ID. Smalley did not identify herself fully to Detective Volkerson, but identified Fidel DeLeon as a possible suspect because of what he had done to her. Through Respondent's telephone records, detectives were able to identify Smalley as the caller. An investigation was initiated and Smalley cooperated with law enforcement. During the investigation, Respondent gave investigators false and misleading statements. Following the internal investigation, Respondent was terminated from the Orange County Sheriff's Office on August 29, 1996. During the course of the investigation of this matter from January through August 1996, there was insufficient evidence of misconduct by law enforcement which would negate the integrity of the investigation into this matter. Smalley's testimony at the formal hearing was credible.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission enter a final order which finds: Respondent guilty of committing attempted sexual battery on January 22, 1996; that Respondent failed to maintain the qualifications established by Section 943.13(7), Florida Statutes, which require that law enforcement officers have good moral character; and revoke the certification of Respondent to be a law enforcement officer in the State of Florida. DONE AND ENTERED this 22nd day of February, 1999, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 22nd day of February, 1999. COPIES FURNISHED: Karen Simmons, Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Fidel DeLeon 381 Lake Park Trail Oviedo, Florida 32765 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 A. Leon Lowry, II, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact Based upon the oral and documentary evidence adduced at the Final Hearing and the entire record in this proceeding, the following findings of fact are made: On March 3, 1994 Petitioner submitted to the Department an application for licensure as a Limited Surety Agent (Bail Bondsman). In a Denial Letter dated July 20, 1994, the Department notified Petitioner that his application for licensure was denied. The basis for the Department's denial of Petitioner's application was Petitioner's past felony convictions. The evidence established that on or about December 4, 1980, Petitioner was charged in the Circuit Court for the Twelfth Judicial Circuit of Florida, Case Number 80-105 (the "First State Case"), with trafficking in illegal drugs and the use of a firearm during the commission of a felony in violation of Sections 893.135 and 790.07, Florida Statutes. On June 5, 1981, Petitioner pled no contest in the First State Case to trafficking in excess of two thousand (2,000) pounds, but less than ten thousand (10,000) pounds of cannabis. Petitioner was fined and placed on probation for ten (10) years. On or about June 14, 1981, Petitioner was charged in the United States District Court, Southern District of Florida, Case Numbers 83-6033-CR-EPS and 83-6038-CR-NCR (the "Federal Cases"), with five felony counts of possession with intent to distribute illegal drugs and conspiracy to import illegal drugs into the United States of America, in violation of Title 21, Sections 841(a)(1), 846, 952(a), 960(a), 963, and 843(b), United States Code. On or about November 5, 1981, Petitioner was charged in the Circuit Court for the Twentieth Judicial Circuit of Florida, Case Number 81-1191 CFG (the "Second State Case") with violation of the Florida Racketeer Influence and Corrupt Organization Act ("RICO"), Section 943.462, Florida Statutes. Although the exact timing is not clear, at some point after his arrest, Petitioner began cooperating with authorities which led to plea bargains and a sentence which did not include any jail time. On April 4, 1984, Petitioner pled guilty to one count in each of the Federal Cases to attempt and conspiracy to import marijuana and methaqualaudes into the United States of America. As a result of his plea in the Federal Cases, Petitioner was fined and placed on 5 years probation. On April 6, 1984, Petitioner pled guilty in the Second State Case, was fined $7,500.00 and placed on probation for fifteen (15) years. This plea was negotiated as part of the plea in the Federal Cases. Petitioner's probation from the First State Case was terminated May 20, 1988. Petitioner's probation from the Federal Cases was terminated on April 21, 1989 and September 11, 1989. Petitioner's civil rights were restored pursuant to Executive Orders of the Office of Executive Clemency dated May 19, 1989 and May 23, 1990. It is not clear from the record if the Executive Orders constitute a "full pardon" as suggested by counsel for Petitioner at the hearing in this matter. Petitioner down plays his role in the elaborate criminal scheme that led to his arrests and convictions. He suggests that all of the charges were related to the same scheme. Insufficient evidence was presented to reach any conclusions regarding the underlying criminal activity and/or Petitioner's exact involvement. Petitioner has been very active in community affairs since his convictions. He has apparently been a good family man and claims to have rehabilitated himself. Subsequent to his conviction, Petitioner and three other investors started a bail bond business. Petitioner claims he did not play an active role in the business. However, when the Department learned of his involvement, it required Petitioner to terminate any affiliation with the company. Petitioner's wife currently owns a bail bond company. Petitioner operates a "court services" business out of the same building where his wife's bail bond business operates. No evidence was presented of any improper involvement by Petitioner in his wife's business.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Insurance and Treasurer enter a Final Order denying Petitioner's application for licensure as a Limited Surety Agent. DONE AND RECOMMENDED this 2nd day of August, 1995, in Tallahassee, Leon County, Florida. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of August, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-4893 Rulings on the proposed findings of fact submitted by the Petitioner: Subordinate to findings of fact 4 through 10. Subordinate to findings of fact 13. Rejected as unnecessary. Adopted in substance in findings of fact 1. Adopted in substance in findings of fact 2. Adopted in the Preliminary Statement. Rejected as vague and unnecessary. Subordinate to findings of fact 14 and 15. Subordinate to findings of fact 14 and 15. Rulings on the proposed findings of fact submitted by the Respondent: Adopted in substance in findings of fact 1. Adopted in substance in findings of fact 2. Adopted in substance in findings of fact 2 through 10. Subordinate to findings of fact 14. Rejected as argumentative and unnecessary. COPIES FURNISHED: Bill Nelson State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, FL 32399-0300 Dan Sumner Acting General Counsel Department of Insurance The Capitol, PL-11 Tallahassee, FL 32399 Julio Gutierrez, Esq. 2225 Coral Way Miami, FL 33145 Allen R. Moayad, Esq. Florida Department of Insurance and Treasurer 612 Larson Building 200 E. Gaines Street Tallahassee, FL 32399-0300
The Issue The issues in this case are whether Respondent failed to maintain good moral character in violation of sections 943.1395(7) and 943.13(7), Florida Statutes, and Florida Administrative Code Rule 11B-27.0011(4)(a) and (b), by unlawfully possessing a controlled substance, cocaine, and by driving or being in actual physical control of a vehicle while under the influence of alcoholic beverages, when effected to the extent that his normal faculties were impaired or with a blood or breath alcohol level of .08 or above, and if so, the penalty that should be imposed.
Findings Of Fact Petitioner, Criminal Justice Standards and Training Commission, is the state agency charged with the responsibility of certifying correctional officers and taking disciplinary action against them for failing to maintain good moral character as required by section 943.13(7). § 943.1395, Fla. Stat. At all times relevant, Respondent was a certified Florida Correctional Officer, having been issued certificate number 279704. On October 14, 2010, Respondent was operating or in actual physical control of his motor vehicle in South Miami, Florida. South Miami Police Officer Junior Vijil observed Respondent's vehicle stopped in the middle of the intersection of 58th Court and Southwest 73rd Street. After observing Respondent's driving pattern, Officer Vijil initiated a traffic stop. Officer Vijil approached Respondent's vehicle and made initial contact with Respondent. Officer Vijil observed certain indicators of potential impairment and requested Respondent to step out of the vehicle. Respondent complied with Officer Vijil's request. At the time of the traffic stop, Respondent had a passenger in the front seat of his vehicle. When Respondent exited the vehicle, at Officer Vijil's request, the passenger remained seated in the vehicle. Officer Vijil called for backup officers and awaited their arrival prior to performing field sobriety exercises with Respondent. The passenger remained seated, unsupervised, in Respondent's vehicle for several minutes until additional law enforcement personnel arrived. When South Miami Police Officer Louis Fata arrived on the scene, Officer Vijil initiated field sobriety exercises. At the conclusion of the field sobriety exercises, Officer Vijil did not immediately arrest Respondent, but rather, requested Respondent provide consent to search the vehicle. Respondent consented to the search. Officer Vijil began the search of the vehicle by first looking in the front interior compartment. He observed, in plain sight, a small, dark, plastic baggie in the center console. The center console's lid was absent. Although the baggie was dark in color, Officer Vijil could observe a white powdery substance that he believed was cocaine. After locating the suspicious substance, Officer Vijil removed the same from Respondent's vehicle and secured it in his patrol vehicle. A field test of the white substance was performed by Officer Vijil and Officer Fata, which resulted in a presumptive positive result for cocaine. Officer Vigil interviewed Respondent and the passenger concerning their knowledge of the suspected cocaine. After both individuals denied any knowledge of the substance, Officer Vijil arrested Respondent for possession of a controlled substance. Karen Wiggins, a criminalist at the Miami-Dade Police Department Forensic Service Bureau, performed a series of tests on the substance at issue, and credibly testified that the suspected substance was cocaine. Pursuant to the Joint Stipulation, the parties stipulate that, on October 14, 2010, Respondent did unlawfully drive or was in actual physical control of a vehicle while under the influence of alcoholic beverages, when effected to the extent that his normal faculties were impaired; or with a blood or breath alcohol level of .08 or above.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that: The Criminal Justice Standards and Training Commission enter a final order finding Respondent guilty of violating sections 943.1395(7) and 943.13(7), Florida Statutes, and Florida Administrative Code Rule 11B-27.0011(4)(b), by his violation of section 316.193, Florida Statutes. It is further recommended that Respondent be placed on probation for a period of six months, with the requirement that Commission-approved substance abuse counseling be completed prior to the end of the probationary period. It is further recommended that the Commission enter an final order dismissing the allegation that Respondent unlawfully constructively possessed a controlled substance in violation of section 893.13(6)(a), Florida Statutes. DONE AND ENTERED this 2nd day of August, 2013, in Tallahassee, Leon County, Florida. S TODD P. RESAVAGE 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 2nd day of August, 2013.
The Issue The issue presented is whether Petitioner Amber Renae Baker has met her burden of proving actual innocence, thereby entitling her to compensation under the Victims of Wrongful Incarceration Compensation Act.
Findings Of Fact Petitioner Amber Renae Baker was born on November 25, 1963. At the time of her conviction, she was 43 years of age. On March 28, 2006, Petitioner was charged with racketeering, in violation of Section 895.03(3), Florida Statutes, relating to her participation in her brother's escort service, which was in fact an organized prostitution ring. On April 16-20, 2007, Petitioner was tried before a jury in Escambia County, Florida, on one count of racketeering. She stood trial along with her brother, Dallas Baker, who was tried on a count of racketeering and for procuring a person under the age of eighteen for prostitution, and her mother, Mary Helen Baker, who was tried for racketeering as well. During the trial, Petitioner made a motion for judgment of acquittal, arguing that the State did not produce evidence that Petitioner knowingly participated in a pattern of racketeering activity, to wit: that the State of Florida did not produce any evidence that Petitioner knew that any of the women hired by her brother to provide escort services (a legal activity) was also providing prostitution services. Petitioner further argued that the State did not produce sufficient evidence that Petitioner intended to assist in perpetuating anything more than an escort service. The trial court denied Petitioner's motion for judgment of acquittal. The jury convicted all three defendants on all charges. Petitioner was sentenced to thirty-four and one-half months of imprisonment. On September 22, 2008, the First District Court of Appeal issued an Opinion reversing the trial court's denial of Petitioner's motion for judgment of acquittal. Baker v. State of Florida, 990 So. 2d 1221 (Fla. 1st DCA 2008). The District Court found, as a matter of law, that the State failed to present sufficient evidence to prove that she agreed to secure another person for prostitution or otherwise violated Section 769.07, Florida Statutes. Petitioner was released from incarceration on October 9, 2008. By the time she was released, Petitioner had been incarcerated for 540 days. Petitioner has never been convicted of any other felony in any jurisdiction. From 1995 through at least 2005, Petitioner answered the telephone for her brother's escort service from 1:00 p.m. until 3:00 a.m. seven days a week, arranging dates for the callers with the women who worked for her brother. When a call came in, she would describe the different girls that were available by height, weight, hair color, and bra cup size. Then Petitioner would call the woman in whom the caller expressed interest and give her the customer's phone number. The woman would decide if she wanted to go. Petitioner quoted to the customer, as she describes the men who called to hire a woman, the price of $150 to $200 per hour. During the "date," Petitioner would call the woman every hour to ask her if she was alright. After the "date," the woman would bring the money to Petitioner at her brother's trailer where she lived and answered the telephone. She knew that each of the women who worked for her brother had and was required to have a "dance card," which is the slang term for an occupational license for an exotic dancer. Petitioner contends that she did not know that her brother, with her help and her mother's help, was operating a prostitution ring. She contends that she believed that the women were simply going on dinner dates and were being paid by the customer $150 to $200 per hour to accompany a man who was also paying for dinner. She contends that she also thought that sometimes the women were hired for topless dancing or to attend a bachelor party, which meant charging the customer for four hours. Petitioner did not testify at her criminal trial on the advice of her lawyer and of her co-defendant brother. Because she did not testify, the State was not able to offer two documents into evidence. Those documents are a letter she wrote to her mother before her arrest and the transcript of an interview of her after she was arrested. The typewritten letter is undated and was confiscated from her home by the police when they executed a search warrant upon arresting her. In the letter she complains bitterly about her mother not loving her as much as she loved Petitioner's brother. Primarily, though, she complains bitterly that she has worked in the business for years without being paid even minimum wage. The letter also contains the following statements: (1) "And you have never cared that I could lose my kids because of this business. . . ." and (2) ". . . but I am gonna [sic] be left in the dirt as usual answering phones that could cause me to lose my kids. " Those statements are contrary to Petitioner's position in this proceeding that she did not know she was answering the phones and scheduling appointments for prostitution. There would be no danger of having her children removed from her custody for working in a legitimate business answering telephones and scheduling appointments. Further, photographs admitted in evidence show the condition of the trailer where Petitioner lived with her children. The conditions are deplorable and clearly unsafe. Although not obvious in the photographs, Petitioner admitted during the hearing that she allowed dog feces to remain in the trailer without removing them. Yet, she does not appear to have been worried that her children would be removed from her custody for unsafe living conditions, only for her answering the telephone for the business. The recorded and transcribed interview of Petitioner was conducted on March 27, 2006, after her arrest. The following questions and answers are relevant to this inquiry: Q. Did girls ever try to talk about sex with you? People having sex or people wanting some weird things? A. They, a couple of them would try to start talking about some weird things and I would say, I don't want to hear it. Q. What kind of weird things? A. I don't know, like walking on hot dogs. (Laughing) Q. Walking on hot dogs? Were girls allowed to talk to you about, I mean, if a girl tried to talk to you about sex what would you do? A. I would just tell them I don't want to hear about it. * * * Q. Okay. Do you believe the girls were having sex for money? Did you have a pretty good idea they were having sex for money? A. Well, I guess that's what everybody assumes. Q. Did you assume it? A. No Audible Answer. Q. Is that a 'yes' A. Um, what else can you assume? * * * Q. Really? Okay. Is there anything that you can think about that you can tell me why you would believe or what would make you think that Dallas knew the girls were having sex for money? A. I don't know. I, that's the way it's done on t.v. Q. What's, what's how it's done on t.v.? A. Services. Q. That are involved in prostitution? A. I was hoping he wasn't doing it. Q. Really? Did you feel he was? A. I guess. Q. Yes? A. I said I guess. * * * Q. . . . can you think of any conversations you and your mother had about customers or the things they liked or anything like that? A. No, just made jokes about the hot dog thing. We thought that was funny. Q. Really? What did, what did, what did he want her to do after she walked on the hot dogs? A. Let him eat them from between her toes. * * * Q. Men with feet fetishes? Never heard nothing like that? A. I don't know, they would call and ask for somebody with pretty feet sometimes. Petitioner, who professes to have had "a little bit of college," may well have avoided direct conversation regarding the real services offered by her brother's "escort service," but it is evident by her statements both in the letter she wrote to her mother and in her transcribed interview that she in fact knew that sex was involved in the "dates" she arranged and that she was at risk answering the telephones because she was participating in an illegal activity. Petitioner contends that she was an unwilling participant in her brother's business and that she was coerced into answering the telephone for the business because her brother emotionally and physically abused her and threatened her with harm. Petitioner takes two approaches in supporting her position that she was coerced by her brother into answering the telephone. First, Petitioner testified in this proceeding that her brother abused her when she was a child by calling her names and years later by beating her. Interestingly, her letter to her mother describes her brother as a "lying, back stabbing, whore hopping, white trash dog. . . ." It appears that name- calling was not a one-way street in Petitioner's family. Similarly, in her recorded interview she explained that her brother "always beat her up," but then admitted the last time was 16 years earlier. She also explained that when he had recently started cussing at her, she "told him to go to hell." The dynamic between Petitioner and her brother does not suggest duress or coercion, as Petitioner alleges. Petitioner's other approach to proving duress in this proceeding (rather than in the criminal proceeding where it can constitute an affirmative defense) is by the affidavits admitted in evidence by stipulation of the parties. One affidavit is that of Petitioner, which alleges her brother continuously beat and threatened her, a version not consistent with her testimony at the evidentiary hearing in this cause. The other affidavit is from a psychologist with solid credentials who saw Petitioner twice after her release from prison. Petitioner's attorney referred her to him for a psychological evaluation. The affidavit is accompanied by the psychologist's report. Although the evaluation showed Petitioner to have "significant emotional problems," it was clear to the psychologist that Petitioner exaggerated her symptoms for the benefit of the evaluation, and her test profiles were, therefore, only marginally valid. Even with his awareness that Petitioner was not an accurate reporter as evidenced by his several references to Petitioner's obvious attempt to influence the evaluation, the psychologist opined that Petitioner needs extended treatment and medication. There is no evidence that Petitioner has followed his recommendations. The holding in Dixon v. United States, 548 U. S. 1 (2006), makes it clear that duress is an affirmative defense and that to invoke it, a defendant must admit the crime and then affirmatively prove that the defendant was coerced by threatened unlawful and imminent harm to commit the crime. In this proceeding, Petitioner argues, inconsistently, that she did not commit a crime and that she was forced to repeatedly perform the act which constituted the crime, i.e., arranging "dates" between customers and prostitutes over a period of approximately ten years. Petitioner does not make a credible witness. Her varying explanations given at different times to different persons undermine her credibility. The purpose of this proceeding is not to determine whether Petitioner is guilty beyond a reasonable doubt of the crime of racketeering by participating in a prostitution ring, the determination that was made in her criminal trial and the test before the appellate court which overturned her conviction. Rather, in this proceeding wherein Petitioner is seeking monetary compensation for her wrongful incarceration, Section 961.03, Florida Statutes, requires Petitioner to establish by clear and convincing evidence that she committed neither the act nor the offense that served as the basis for her conviction and incarceration and that she did not aid, abet, or act as an accomplice or accessory to a person who committed the act or offense. Further, she must prove her actual innocence by verifiable and substantial evidence in order to meet the definition of wrongfully incarcerated person. A review of the appellate court opinion overturning Petitioner's conviction reveals that the State presented insufficient evidence that Petitioner knew of the unlawful nature of the "dates" she arranged. It is appropriate, therefore, that Petitioner’s conviction and sentence based upon that insufficient evidence should have been vacated, and they were. However, the inability or failure of the State to prove Petitioner guilty beyond a reasonable doubt does not prove that Petitioner is actually innocent of the act or offense that served as the basis for the conviction and sentence and does not prove that she did not aid, abet, or act as an accomplice or accessory to a person who committed the act or offense. The evidence which the State was prevented from offering at her trial by her decision not to testify-- Petitioner's letter to her mother and her statements during her recorded interview--and which, therefore, was not before the appellate court conflicts with Petitioner's testimony that she is innocent. That evidence is not verifiable and substantial evidence of Petitioner's actual innocence, which is the quality of evidence the Statute requires in this proceeding. Further, Petitioner's statements to the psychologist and his conclusions regarding her mental health are not verifiable and substantial evidence of Petitioner's actual innocence. Lastly, Petitioner’s own testimony denying her guilt is not verifiable and substantial evidence of her innocence. Petitioner argues that since Chapter 961, Florida Statutes, does not provide a definition of “actual innocence,” the definition should be the one found in Black's Law Dictionary. Petitioner's argument is not persuasive. The statutory scheme under which Petitioner seeks monetary compensation in this proceeding requires more than meeting a definition in a dictionary; it requires a certain quality and quantity of evidence. The Statute regulating this proceeding does not consider the legal sufficiency of the evidence as did the appellate court when it reversed Petitioner's conviction and as does Black's Law Dictionary. Rather, the Statute seeks a determination of the factual sufficiency of the evidence by requiring the undersigned to make findings of fact as to Petitioner’s actual innocence if proven by verifiable and substantial evidence. In other words, proof of factual innocence is required. Perhaps the reason the Statute does not contain its own definition of actual innocence is that the Legislature intended the words to have their plain, ordinary meaning. Based upon the evidence before the trial court, the appellate court found insufficient evidence proving Petitioner guilty beyond a reasonable doubt. Based upon the evidence in this proceeding, including evidence not presented to the jury in Petitioner's criminal trial and, therefore, not reviewed by the appellate court, there is no verifiable and substantial evidence proving that Petitioner is actually innocent. Accordingly, Petitioner has failed to meet her burden of proving actual innocence by clear and convincing evidence and, thus, has failed to establish that she is a wrongfully incarcerated person eligible for compensation under the Victims of Wrongful Incarceration Compensation Act. RECOMMENDED DETERMINATION Based on the record in this proceeding and the above Findings of Fact, it is RECOMMENDED that an order be entered by the Circuit Judge determining that Petitioner has failed to meet her burden of proving actual innocence by clear and convincing evidence, denying Petitioner’s claim for compensation, and dismissing her Petition. DONE AND ENTERED this 4th day of January, 2010, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 4th day of January, 2010. COPIES FURNISHED: Honorable Nickolas P. Geeker Escambia County Circuit Judge M.C. Blanchard Judicial Building 190 Governmental Center Pensacola, Florida 32502 Ernie Lee Magaha, Clerk of Court Escambia County M.C. Blanchard Judicial Building 190 Governmental Center Pensacola, Florida 32502 Keith W. Weidner, Esquire Taylor, Warren & Weidner, P.A. 1823 North 9th Avenue Pensacola, Florida 32503-5270 Russell Graham Edgar, Jr., Esquire State Attorney's Office Post Office Box 12726 Pensacola, Florida 32575-2726
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.
Findings Of Fact Petitioner certified Respondent as a correctional officer on February 14, 1986. Since that time, Respondent has held Correctional Certificate Number 81761. 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. Respondent walked away from the police car. As he walked away, Respondent dropped an item from his pocket. 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. 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. 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.
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
