03-003240PL Department Of Law Enforcement, Criminal Justice Standards And Training Commission vs. Jacqueline L. Scriven Status: Closed Recommended Order on Monday, December 22, 2003.

Summary: Respondent, a corrections officer, was guilty of aggravated assault and battery. Discipline recommended.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF LAW ENFORCEMENT, )

CRIMINAL JUSTICE STANDARDS AND )

TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 03 - 3240PL

)

JACQUELINE L. SCRIVEN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative

Hearings, by its duly - designated Administrative Law Judge,

Jeff B. Clark, held a formal administrative hearing in this

matter on November 10, 2003, in Or lando, Florida.

For Petitioner: Linton B. Eason, Esquire

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: Jacqueline L. Scriven, pro se

508 Koala Drive

Kissimmee, Florida 34759

STATEMENT OF THE ISSUE

Whether Respondent may be disciplined for failure to

maintain the qualifications established by Subsection 943.13(7),

Florida Statutes (2002), which requires tha t a correctional

officer have good moral character.

PRELIMINARY STATEMENT

On August 8, 2003, Petitioner, Department of Law

Enforcement, Criminal Justice Standards and Training Commission,

mailed Respondent, Jacqueline L. Scriven, an Administrative

Complain t wherein it was alleged:

2(a) On or about March 18, 2003, [1] the

Respondent, Jacqueline L. Scriven, did

unlawfully and intentionally commit an

assault upon Marissa Jefferson, by

threatening by word or act to do violence to

said person, coupled with the apparent

ability to do so, and by doing an act which

created a well - founded fear in said Marissa

Jefferson that said violence was imminent,

by pointing and threatening with a deadly

weapon, to wit: .38 caliber revolver.

(b) On or about March 18, 2003, the

Respondent, Jacqueline L. Scriven, did

unlawfully commit a battery upon Marissa

Jefferson, by actually and intentionally

touching or striking said person against

said person's will, or by intentionally

causing bodily harm to said person, and in

commit ting said battery did use a hammer, a

deadly weapon.

3. The actions of the Respondent did

violate the provisions of Section

784.021(1)(a) and/or 784.045(1)(a)2 or any

lesser included offenses, Section

943.1395(6) and/or (7), Florida Statutes,

and/or Ru le 11B - 27.0011(4)(b), Florida

Administrative Code, in that the Respondent

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 August 19, 2003, Respondent executed an Election of

Rights advising Petitioner that she disputed the allegations of

fact contained in the Administrative Complaint.

On September 12, 2003, Petitioner forwarded a Request for

Assignment of Administrative Law Judge to the Division of

Administrative Hearings. An Initial Order was sent to both

parties on the same date. On September 29, 2003, the case was

scheduled for final hearing in Orlando, Florida, on November 10,

2003.

The case was heard as scheduled. Petitioner presented two

witnesses: Ivan Garcia, a former Polk County, Florida, deputy

sheriff, and David Kelly, a Polk County, Florida, deputy

sheriff. Petitioner offered seven exhibits that were received

into evidence and marked Petitioner's Exhibits 1 through 7.

Respondent presented three witnesses: Daniel Deramus, an Orange

County, Florida, corrections officer; Charles Seaborn; and

Respondent, herself. Respondent did not offer any exhibits. A

Transcript of the proceedings was filed with the Cler k of the

Division of Administrative Hearings on November 26, 2003.

Petitioner timely submitted a Proposed Recommended Order.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing, the following findings of fact are mad e:

1. Respondent, Jacqueline L. Scriven, is a state - certified

correctional officer holding certificate No. 45230. She was

certified by Petitioner on August 28, 1985.

2. On March 18, 2002, Respondent and her 21 - year - old

daughter, Marissa Jefferson, were involved in a physical

altercation. The daughter reported to the arresting officer

that Respondent struck her with her fists and a claw hammer.

The arresting officer reported physical evidence on Marissa

Jefferson's back and shoulders consistent with an attack with a

claw hammer.

3. Marissa Jefferson also reported to the arresting

officer that Respondent threatened to shoot her with a revolver

that Respondent was holding, although Respondent did not point

the weapon at her.

4. Marissa Jefferso n was not available to testify; she is

presently incarcerated for writing bad checks in Orange County

jail. She has charges pending in four other Florida counties.

She has a history of police involvement for various criminal and

drug - related offenses. S he stole from her mother while living

with her. Interestingly, while Marisa Jefferson is in jail,

Respondent is the primary caretaker for Marissa Jefferson's son.

5. Respondent was arrested and charged with aggravated

battery (Section 784.045, Florida St atutes (2002)) and

aggravated assault with a firearm (Section 784.021, Florida

Statutes (2002)).

6. On December 17, 2002, Respondent entered a plea of nolo

contendere to a violation of Section 784.03, Florida Statutes

(2002), felony battery. Adjudication was withheld, and she was

placed on probation for a period of one year. In addition, she

paid $183.50 in costs and was directed to undergo anger

management evaluation and training.

7. Respondent, who is 43 years old, had been employed by

Department of C orrections since 1985 and had risen to the rank

of captain. She was terminated on January 9, 2003.

8. Respondent acknowledges hitting her daughter with a

hammer, but denies having ever had the pistol in her possession

during the altercation. Respondent contends that she used the

hammer in self - defense. The position of the blunt trauma

visible on Marissa Jefferson's back and shoulders indicates that

she had her back to Respondent when she was struck. Based on

the hearsay nature of the evidence supporti ng the allegations of

assault with a firearm and Respondent's candid admission of

hitting her daughter with a hammer, but denying having ever had

possession of the firearm during the altercation, her testimony

is credible regarding both allegations. It do es not appear that

Respondent's striking her daughter with the claw hammer was in

self - defense.

CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this cause,

pursuant to Subsection 120.57 (1), Florida Statutes (2003).

10. The Administrative Complaint alleges:

The actions of the Respondent did violate

the provisions of Section 784.021(1)(a)

and/or 784.045(1)(a)2 or any lesser included

offenses, Section 943.1395(6) and/or (7),

Florida St atutes, and/or Rule 11B -

27.0011(4)(a), Florida Administrative Code,

in that the 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.

11. Petitioner has the burden of proving by clear and

convincing evidence the allegations against Respondent. Ferris

v. Turlington , 510 So. 2d 292 (Fla. 1987); Evans Packing Co. v.

Department of Agriculture and Consumer Services , 5 50 So. 2d 112

(Fla. 1st DCA 1989).

12. The following statement has been repeatedly cited in

discussions of the "clear and convincing" evidence standard:

[C]lear and convincing evidence requires

that the evidence must be found to be

credible; the fact s to which the witnesses

testify must be distinctly remembered; the

testimony must be precise and explicit and

the witnesses must be lacking in confusion

as to the facts in issue. The evidence must

be of such weight that it produces in the

mind of the tri er of fact a firm belief or

conviction, without hesitancy, as to the

truth of the allegations sought to be

established.

Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

13. It is alleged that Respondent violated Subsection

784.021(1)(a), F lorida Statutes (2002), which provides:

(1) An "aggravated assault" is an

assault:

(a) With a deadly weapon without intent

to kill;

14. Respondent is also alleged to have violated Subsection

784.045(1)(a)2., Florida Statutes (2002), which provide s:

(1)(a) A person commits aggravated

battery who, in committing battery:

* * *

2. Uses a deadly weapon.

15. Subsections 943.1395(6) and (7), Florida Statutes

(2002), provide that:

(6) The commission shall revoke the

certification of any officer who is not in

compliance with the provisions of s.

943.13(4) or who intentionally executes a

false affidavit established in s. 943.13(8),

s. 943.133(2), or s. 943.139(2).

(a) The commission shall cause to be

investigated any ground for rev ocation from

the employing agency pursuant to s. 943.139

or from the Governor, and the commission may

investigate verifiable complaints. Any

investigation initiated by the commission

pursuant to this section must be completed

within 6 months after receipt of the

completed report of the disciplinary or

internal affairs investigation from the

employing agency or Governor's office. A

verifiable complaint shall be completed

within 1 year after receipt of the

complaint. An investigation shall be

considered com pleted upon a finding by a

probable cause panel of the commission.

These time periods shall be tolled during

the period of any criminal prosecution of

the officer.

(b) The report of misconduct and all

records or information provided to or

developed by the commission during the

course of an investigation conducted by the

commission are exempt from the provisions of

s. 119.07(1) and s. 24(a), Art. I of the

State Constitution and, except as otherwise

provided by law, such information shall be

subject to pu blic disclosure only after a

determination as to probable cause has been

made or until the investigation becomes

inactive.

(c) When an officer's certification is

revoked in any discipline, his or her

certification in any other discipline shall

simultan eously be revoked.

(7) Upon a finding by the commission that

a certified officer has not maintained good

moral character, the definition of which has

been adopted by rule and is established as a

statewide standard, as required by s.

943.13(7), the comm ission may enter an order

imposing one or more of the following

penalties:

(a) Revocation of certification.

(b) Suspension of certification for a

period not to exceed 2 years.

(c) Placement on a probationary status

for a period not to exceed 2 years, subject

to terms and conditions imposed by the

commission. Upon the violation of such terms

and conditions, the commission may revoke

certification or impose additional penalties

as enumerated in this subsection.

(d) Successful completion by the officer

of any basic recruit, advanced, or career

development training or such retraining

deemed appropriate by the commission.

(e) Issuance of a reprimand.

16. Subsection 943.13(7), Florida Statutes (2002),

establishes the minimum qualifications for law enforcement

officers in Florida, including:

Have a good moral character as determined

by a background investigation under

procedures established by the Commission.

17. Florida Administrative Code Rule 11B - 27.0011(4)(a)

provides in pertinent par t:

(4) For the purposes of the Criminal

Justice Standards and Training Commission's

implementation of any of the penalties

specified in Section 943.1395(6) or (7),

F.S., a certified officer's failure to

maintain good moral character required by

Section 943.13(7), F.S., is defined as:

(a) The perpetration by an officer of an

act that would constitute any felony

offense, whether criminally prosecuted or

not.

18. The evidence presented demonstrates clearly and

convincingly that Respondent committed th e offense of assault

with a deadly weapon; she pled nolo contendere to a lesser

included offense, battery.

19. Given the definition of failure to maintain good moral

character as established in Florida Administrative Code Rule

11B - 27.0011(4)(b), Petitione r has proved that Respondent has

failed to demonstrate the minimum qualification of good moral

character as required in Subsection 943.13(7), Florida Statutes

(2002).

20. Florida Administrative Code Rule 11B - 27.005(4) and (5)

provides, in part:

(4) The Commission sets forth in

paragraphs (5)(a) - (d), of this rule section,

a range of disciplinary guidelines from

which disciplinary penalties shall be

imposed upon certified officers who have

been found by the Commission to have

violated Section 943.13(7), F .S. The

purpose of the disciplinary guidelines is to

give notice to certified officers of the

range of penalties, or prescribed penalties,

that shall be imposed for particular

violations of Section 943.13(7), F.S.,

absent aggravating or mitigating

circums tances, as provided in paragraph (6)

of this rule section. The disciplinary

guidelines are based upon a "single count

violation" of each provision listed. All

penalties at the upper range of the

sanctions in the guidelines (i.e.,

suspension or revocation ), include lesser

penalties (i.e., reprimand, remedial

training, or probation), that may be

included in the final penalty at the

Commission's discretion.

(5) When the Commission finds that a

certified officer has committed an act that

violates Section 943.13(7), F.S., the

Commission shall issue a final order

imposing penalties within the ranges

recommended in the following disciplinary

guidelines:

(a) For the perpetration by the officer

of an act that would constitute any felony

offense, pursuant to Rule 11B - 27.0011(4)(a),

F.A.C., but where there was not a violation

of Section 943.13(4), F.S., the action of

the Commission shall be to impose a penalty

ranging from suspension of certification to

revocation.

21. Respondent has perpetrated a felony o ffense, however,

there has been no violation of Subsection 943.13(4), Florida

Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that Petitioner, Department of Law Enforcement,

Criminal Justice Stand ards and Training Commission, enter a

final order finding that Respondent, Jacqueline L. Scriven,

violated Subsection 784.045(1)(a)2., Florida Statutes, and, as a

result, failed to demonstrate good moral character as required

by Subsection 943.13(7), Flori da Statutes, and that her

certification be suspended for two years from January 10, 2003,

and that she be given such other associated penalties as

Petitioner deems appropriate.

DONE AND ENTERED this 22nd day of December, 2003, in

Tallahassee, Leon Coun ty, 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 22nd day of December, 2003.

ENDNOTE

1/ It is noted that the Administrative Complaint incorrectly

indicates that the altercation between Respondent and her

d aughter occurred in 2003, when, in fact, it occurred in 2002.

Respondent is well - aware of the incident that gave rise to her

problems; the actual date is inconsequential and this

scrivener's error is innocuous.

COPIES FURNISHED :

Linton B. Eason, Esquir e

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

Jacqueline L. Scriven

508 Koala Drive

Kissimmee, Florida 34759

Rod Caswell, Program Director

Division of Criminal Justice

Professionalism Services

Department of Law En forcement

Post Office Box 1489

Tallahassee, Florida 32302

Michael Ramage, General Counsel

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.