13-001910VWI Juan F. Ramos vs. State Of Florida Status: Closed Recommended Order on Tuesday, March 4, 2014.

Summary: Petitioner failed to establish actual innocence as he and wife were not credible.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JUAN F. RAMOS ,

Petitioner ,

vs. Case No. 13 - 1910VWI

STATE OF FLORIDA , Circuit Court Case No.:

05 - 1982 - CF - 001321 - AXXX - XX

Respondent .

/

RECOMMENDED ORDER

P ursuant to notice , a formal hearing was held on

December 17 and 18, 2013, in Brevard County, Florida, before

J. D. Parrish, a designated Administrative Law Judge with the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Benedict P. Kuehn e

Law Office of Benedict P. Kuehne, P. A.

100 Southeast Second Street, Suite 3550

Miami, Florida 33131 - 2154

For Respondent: Phillip D. Havens, Esquire

Office of the State Attorney

7 th Judicial Circuit

251 North Ridgewood Avenue

Daytona Beach, Florida 32114

STATEMENT OF THE ISSUE

The issue is whether Petitioner, Juan F. Ramos (Petitioner),

is entitled to compensation pursuant to s ections 961 .01

through 961.07, Florida Statutes (2013). Unless otherwise

stated, all references to the law will be to Florida Statutes

(2013).

PRELIMINARY STATEMENT

By order entered May 13, 2013, Circuit Court Judge Charles

Roberts adjudged as follows:

The Defenda ntÓs [Petitioner herein] Amended

Petition to Victims of Wrongful Incarceration

Compensation Act shall be transferred to the

Division of Administrative Hearings for

findings of fact and a recommended

determination of whether the Defendant has

established th at he is a wrongfully

incarcerated person who is eligible for

compensation.

Thereafter , the matter was forwarded to the Division of

Administrative Hearings (DOAH) for formal proceedings , and the

case was scheduled for hearing. Following a number of prehe aring

conferences , the case was re - scheduled for December 17

through 20, 2013.

At hearing , Petitioner testified on his own behalf and

presented the testimony of his wife, Danette Ramos. Respondent,

State of Florida (Respondent), presented the testimony of Major

John Hankins, Manuel Ruiz, and Wayne Porter. The parties offered

exhibits as described in the two - volume transcript of the

proceedings filed with DOAH on January 7, 2014. Petitioner

objected to a number of RespondentÓs exhibits as hearsay. As

announced throughout the hearing, pursuant to

s ection 120.57(1)(c), Florida Statutes:

Hearsay evidence may be used for the purpose

of supplementing or explaining other

evidence, but it shall not be sufficient in

itself to support a finding unless it would

be admissible over objection in civil

actions.

The parties timely filed proposed recommended orders that

have been fully considered in the preparation of this Recommended

O rder.

FINDING S OF FACT

1. Petitioner immigrated to the United States from Cuba in

1980.

2. In April of 1982, Petitioner resided in Cocoa, Florida,

within walking distance of his employer, Armor Flite Southeast.

3. Mary Sue Cobb, the victim of a murder, also lived in the

area near PetitionerÓs home and Armor Flite Southeast.

4. Pe titioner and Mrs. Cobb knew one another. Prior to

April 23, 1982, Petitioner had placed an Amway order with the

victim and her husband. The Cobbs sold Amway products and

solicited Petitioner to purchase items and/or become a

salesperson for the company.

5. Prior to April 23, 1982, Petitioner had been at the Cobb

residence five or six times. Petitioner had been inside the Cobb

home.

6. For the two days prior to April 23, 1982, Petitioner had

been sick, unable to go to work, and had not been at the Armor

Flite Southeast property.

7. At all times material to this case, Manuel Ruiz was the

general manager at Armor Flite Southeast. Mr. Ruiz served as

PetitionerÓs supervisor. From the Armor Flite Southeast

property , it was possible to view the Cobb residen ce.

8. On the morning of April 23, 1982, Petitioner told his

wife he was going to work. Petitioner did not, however, enter

the Armor Flite property at the beginning of the work day when

Mr. Ruiz opened the shop at approximately 6:45 a.m.

9. Moreover, Mr. Ruiz did not see Petitioner at the Armor

Flite Southeast property until he came to pick up his check at

11:30 a.m. or noon on April 23, 1982.

10. Instead of a paycheck, Mr. Ruiz gave Petitioner a

letter on April 23, 1982, that notified him he was b eing laid off

effective April 21, 1982. Armor Flite Southeast was in

Chapter 11 and the trustee for the company gave Mr. Ruiz a list

of four persons who were to be laid off. Petitioner was among

those four. Petitioner was invited to attend a meeting wi th the

trustee on April 23, 1982, at approximately 3:30 p.m. In theory ,

the employees were being laid off due to lack of work , but they

could be re - hired if the work volume improved. Mr. Ruiz

explained the foregoing to Petitioner. Mr. Ruiz and Petition er

had no difficulty communicating as both men were fluent in

Spanish.

11. At some time after the meeting with Mr. Ruiz,

Petitioner returned home and was there when family members came

over later in the afternoon.

12. During the morning of April 23, 19 82, Mrs. Cobb was

murdered.

13. Following an investigation of the crime, Petitioner was

charged with the first degree murder of Mrs. Cobb, was convicted,

and was incarcerated. Subsequent to the conviction and

sentencing , PetitionerÓs conviction was overt urned and his case

was remanded for a new trial. The second trial resulted in an

acquittal on April 24, 1987.

14. On June 28, 2010, Petitioner filed a petition for

compensation and alleged he is entitled to relief pursuant to

c hapter 961, Florida Statu tes.

15. An Amended Petition was filed on October 20, 2010, and

resulted in an order entered May 13, 2013, by Circuit Court Judge

Charles Roberts that provided as follows:

The DefendantÓs [Petitioner herein] Amended

Petition to Victims of Wrongful Incarce ration

Compensation Act shall be transferred to the

Division of Administrative Hearings for

findings of fact and a recommended

determination of whether the Defendant has

established that he is a wrongfully

incarcerated person who is eligible for

compensat ion.

CONCLUSIONS OF LAW

16. DOAH has jurisdiction over the parties to and the

subject matter of these proceedings. §§ 120.57(1) and

961.03(4)(b), Fla. Stat.

17. Section 961.03, Florida Statutes, provides, in part:

(4)(b) If the prosecuting authority r esponds

as set forth in paragraph (2)(b), and the

court determines that the petitioner is

eligible under the provisions of s. 961.04 ,

but the prosecuting authority contests the

nature, significance or effect of the

evidence of actual innocence, or the fact s

related to the petitionerÓs alleged wrongful

incarceration, the court shall set forth its

findings and transfer the petition by

electronic means through the divisionÓs

website to the division for findings of fact

and a recommended determination of whethe r

the petitioner has established that he or she

is a wrongfully incarcerated person who is

eligible for compensation under this act.

(5) Any questions of fact, the nature,

significance or effect of the evidence of

actual innocence, and the petitionerÓs

e ligibility for compensation under this act

must be established by clear and convincing

evidence by the petitioner before an

administrative law judge.

18. Petitioner bears the burden of proof in this matter to

establish he is entitled to the relief sought by clear and

convincing evidence. Clear and convincing evidence "requires

more proof than a 'preponderance of the evidence' but less than

'beyond and to the exclusion of a reasonable doubt.'" In re

Graziano , 696 So. 2d 744, 753 (Fla. 1997). This interm ediate

standard requires evidence that is credible, facts must be

distinctly remembered, testimony must be precise and explicit,

and witnesses must be clear and unambiguous. See In re Davey ,

645 So. 2d 398 (Fla. 1994). To meet this burden , the evidence

m ust be of such weight that it produces in the mind of the trier

of fact a firm belief as to the truth of the allegations sought

to be established. See Slomowitz v. Walker , 429 So. 2d 797 (Fla.

4th DCA 1983). When evidence is ambiguous, this standard is n ot

met. Westinghouse Electric Corp . , Inc. v. Shuler Bros., Inc . ,

590 So. 2d 986 (Fla. 1st DCA 1991). In this case, Petitioner

failed to meet this difficult burden.

19. Section 961.02(4), Florida Statutes, defines

Ðwrongfully incarcerated personÑ as:

[ a ] person whose felony conviction and

sentence have been vacated by a court of

competent jurisdiction and, with respect to

whom pursuant to the requirements of

s. 961.03, the original sentencing court has

issued its order finding that the person

neither c ommitted the act nor the offense

that served as the basis for the conviction

and incarceration and that the person did not

aid, abet, or act as an accomplice or

accessory to a person who committed the act

or offense.

20. Section 961.03, Florida Statutes, provides, in

pertinent part:

(1)(a) In order to meet the definition of a

Ðwrongfully incarcerated personÑ and

Ðeligible for compensation,Ñ upon entry of an

order, based upon exonerating evidence,

vacating a conviction and sentence, a person

must set fort h the claim of wrongful

incarceration under oath and with

particularity by filing a petition with the

original sentencing court, with a copy of the

petition and proper notice to the prosecuting

authority in the underlying felony for which

the person was in carcerated. At a minimum,

the petition must:

1. State that verifiable and substantial

evidence of actual innocence exists and state

with particularity the nature and

significance of the verifiable and

substantial evidence of actual innocence ; and

2. S tate that the person is not

disqualified, under the provisions of

s. 961.04, from seeking compensation under

this act. (emphasis added) .

21. In order to establish that he meets the criteria for a

Ðwrongfully incarcerated person,Ñ Petitioner must establ ish he is

eligible for compensation pursuant to s ection 961.04, Florida

Statutes. Pursuant to that law:

A wrongfully incarcerated person is not

eligible for compensation under the act if:

(1) Before the personÓs wrongful conviction

and incarceration, th e person was convicted

of, or pled guilty or nolo contendere to,

regardless of adjudication, any felony

offense, or a crime committed in another

jurisdiction the elements of which would

constitute a felony in this state, or a crime

committed against the Un ited States which is

designated a felony, excluding any

delinquency disposition;

(2) During the personÓs wrongful

incarceration, the person was convicted of,

or pled guilty or nolo contendere to,

regardless of adjudication, any felony

offense; or

(3) D uring the personÓs wrongful

incarceration, the person was also serving a

concurrent sentence for another felony for

which the person was not wrongfully

convicted.

In this case , Petitioner has shown by clear and convincing

evidence that he meets the eligib ility standard. PetitionerÓs

record from Cuba and his testimony support this conclusion.

22. Disputed in this case is whether Petitioner murdered a

female victim on the morning of April 23, 1982. In order to meet

the definition of a wrongfully incarce rated person , Petitioner

must establish by clear and convincing evidence he is actually

innocent of that crime. He did not. Petitioner claimed he was

at home in bed with his wife at the time of the crime. His

account of the day of the murder and his wif eÓs statement of the

timeline for that day are not credible. Given the totality of

the testimony presented at hearing , it is concluded Petitioner

failed to establish by clear and convincing evidence that he was

actually innocent of the crime. PetitionerÓ s claim of innocence

relied on his credibility. Based upon his evasive manner and

inconsistencies with the testimony of Mr. Ruiz, it is concluded

Petitioner was not forthright in the description of his

activities on the day of the murder. That Petitioner was

acquitted of the crime does not establish actual innocence. That

someone else could also have been involved in the crime does not

establish actual innocence. Petitioner presented no credible,

persuasive, exonerating evidence to support his actual in nocence.

23. An appellate court may reverse a criminal judgment for

a number of reasons. In this case , it did so because of trial

errors that led to PetitionerÓs conviction. The reversal does

not determine that this Petitioner was actually innocent. As

held in Fessenden v. State , 52 So. 3d 1 (Fla. 2d DCA 2010 ) , an

order vacating a conviction and sentence on the legal ruling of

the appellate court is not an order Ðbased upon exonerating

evidence,Ñ as required by s ection 961.03, Florida Statutes.

24. Besides the self - serving and in credible testimony of

Petitioner and his wife, no evidence of actual innocence was

presented. The standard in this case is very strict. An

acquitted party cannot unilaterally claim innocence and thereby

open the coffers of the public treasury.

25. PetitionerÓs claim that Respondent destroyed evidence

that would have supported his innocence is also discredited.

Throughout the proceedings , Petitioner objected to hearsay

offered by Respondent to support its case. Such obj ections were

noted and the undersigned has made great effort to assure that

the findings reached herein are supported by the testimony

offered at the hearing of this case and not inadmissible hearsay.

All of the evidence Petitioner claims would support a finding

that Respondent destroyed evidence is hearsay. At best , someone

told someone the evidence was destroyed. PetitionerÓs

descriptions of the Ðdestroyed evidenceÑ are not supported by

admissible evidence presented at hearing.

RECOMMEND ED DETERMINATIO N

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that an order be entered by the circuit

court that Petitioner failed to establish actual innocence of the

crime for which he was incarcerated.

DONE AND ENTERED this 4 th day of March , 2014 , in

Tallahassee, Leon County, Florida.

S

J. D. PARRISH

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 967 5

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 4 th day of March , 2014 .

COPIES FURNISHED:

Benedict P. Kuehne, Esquire

Sale and Kuehne

BankAmerica Tower, Suite 3550

100 Southeast 2nd Street

Miami, Florida 33131 - 2154

Lori Todd

Eighteenth Judicial Circuit

Moore Justice Center

2825 Judge Fran Jamieson Way

Viera, Florida 32940

Phillip D. Havens, Esquire

Office of the State Attorney,

7th Judicial Circuit

251 North Ridgewood Avenue

Day tona Beach, Florida 32114

Honorable Charles Roberts

Brevard County Circuit Judge

Eighteenth Judicial Circuit

Moore Justice Center

2825 Judge Fran Jamieson Way

Viera, Florida 32940

Scott Ellis, Clerk of Court

Brevard County

Post Office Box 999

Titusvil le, Florida 32781 - 0999

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 field with the agency that

will issue the Final Order in this case.