13-003223RX William R. Muldrow, Jr. vs. Department Of Correction, A State Agency
 Status: Closed
DOAH Final Order on Tuesday, October 29, 2013.


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Summary: Probationer did not prove standing to challenge rule on when probation officer can request early termination.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8WILLIAM R. MULDROW, JR. ,

12Petitioner ,

13vs. Case No. 13 - 3223RX

19DEPARTMENT OF CORRECTION S , 1/

24Respondent .

26/

27FINAL ORDER

29The final hearing in the case was held on September 25,

402013, in Tallahassee, Florida, before J. Lawrence Johnston, the

49Administrative Law Judge designated by the Division of

57Administrative Hearings (DOAH).

60APPEARANCES

61For Petitioner: William R. Muldrow

663070 Waterford Drive

69Tallah assee, Florida 32309 - 3332

75For Respondent: Deborah B. Loucks, Esquire

81Lawrence D. Harris, Jr., Esquire

86Office of the Attorney General

91The Capitol, Plaza Level 01

96Tallahassee, Florida 32399 - 1050

101STATEMENT OF THE ISSUE

105The issue in this case is whether to grant the petition

116challenging the validity of Florida Administrative Code

123Rule 33 - 302.111(2).

127PRELIMINARY STATEMENT

129On August 23, 2013, Petitioner filed a petition to

138invalidate Florida Administrative Code Rule 33 - 302.111 (the

" 147Rule " ). On September 10, 2013, Petitioner amended the

156petition. The final hearing was held on September 25, 2013. At

167the hearing, Petitioner presented the testimony of Stefanie

175Walters, Robert Woolfork, and Pamela McCoy. Petitioner ' s

184Exhibits 1 and 2 were received into evidence.

192The Transcript of the final hearing was filed with DOAH on

203October 9, 2013. The parties filed proposed final orders, which

213have been considered.

216FINDING S OF FACT

2201. At the time of the final hearing, Petitioner was on

231probatio n and under the supervision of the Department of

241Corrections.

2422. Petitioner obtained a form pro se motion for early

252termination of probation from the Leon County circuit court

261clerk ' s office. The form contained fields for Petitioner ' s

273probation officer and the assistant state attorney to object or

283not object to early termination and to comment.

2913. Petitioner presented the form to his probation officer,

300who had her supervisor fill in the probation officer ' s field.

3124 . The supervisor indicated neither an objection nor lack

322of objection. She commented that she was leaving it to the

333court to determine if Petitioner had met the vehicle impoundment

343condition of his probation, but that Petitioner had met all

353other requirements to be considered for early ter mination of

363probation.

3645 . A hearing was scheduled on Petitioner ' s motion in

376June 2013. The judge notified the assistant state attorney

385assigned to the case and asked her to appear at the hearing. At

398the hearing, the assistant state attorney objected t o early

408termination of Petitioner ' s probation. At some point in time,

419the assistant state attorney also checked the field on the form

430motion indicating her objection to early termination. The judge

439denied the motion.

4426 . Petitioner blames the denial of his motion on

452subsection (2) of rule 33 - 302.111, which states:

461(1) Before a correctional probation

466officer considers recommending an offender

471for early termination of supervision, the

477following criteria shall be met:

482(a) Completion of one - half of the

490s upervision period;

493(b) Payment in full of restitution, fines,

500and court costs;

503(c) Cost of supervision is current;

509(d) All special conditions of supervision

515are fulfilled;

517(e) A Florida Crime Information

522Center/National Crime Information Center

526(FC IC/NCIC) records check reveals no new

533arrest during the course of supervision of

540which the sentencing or releasing authority

546has not been previously notified; and

552(f) No violations of supervision are

558pending.

559(2) In order for an officer to request an

568e arly termination of supervision from the

575sentencing or releasing authority, approval

580must be obtained from the officer ' s

588supervisor, the State Attorney ' s Office,

595and the victim, if the offense involved a

603victim. If the State Attorney ' s office

611denies the r equest, or the victim opposes

619the early termination, the department will

625not proceed with the early termination

631recommendation. The officer shall not

636disclose a victim ' s objection to the

644offender.

645(3) The officer shall notify the offender

652of the judge ' s decision upon receipt of the

662judge ' s response. If the offender was

670adjudicated guilty, the officer shall

675review the restoration of civil rights

681process with the offender.

685He contends that subsection (2) of the rule is an invalid

696exercise of delegated le gislative authority because it exceeds

705the statutory grant of rulemaking authority and enlarges,

713modifies, or contravenes the specific provisions of law

721implemented. See § 120.52(8)(b) & (c), Fla. Stat. (2013).

730Specifically, Petitioner contrasts the rule with section

737948.04(3), Florida Statutes, which states:

742If the probationer has performed

747satisfactorily, has not been found in

753violation of any terms or conditions of

760supervision, and has met all financial

766sanctions imposed by the court, including,

772but not limited to, fines, court costs, and

780restitution, the Department of Corrections

785may recommend early termination of

790probation to the court at any time before

798the scheduled termination date.

802Although on the precise subject as the rule, section 948.03(4)

812is not cited in the rule as either the rulemaking authority or

824the law implemented. Instead, the rule cites section 944.09 ,

833Florida Statutes, for both.

837CONCLUSIONS OF LAW

8407 . Section 120.56 allows any person " substantially

848affected " by a rule to initiat e a challenge to its validity.

" 860The administrative law judge may declare all or part of a rule

872invalid. The rule or part thereof declared invalid shall become

882void when the time for filing an appeal expires. "

891§ 120.56(3)(b), Fla. Stat.

8958. Petitioner h as the burden of proving standing. See

905§ 120.56(1)(b), Fla. Stat. To establish standing, Petitioner

913must show (1) that the challenged rule will result in a real and

926immediate injury in fact, and (2) that the alleged injury is

937within the zone of interest to be protected or regulated. See ,

948e.g. , Jacoby v. Fla . Bd. of Med. , 917 So. 2d 358, 360 (Fla. 1st

963DCA 2005) ; Lanoue v. Fla. Dep ' t of Law Enf . , 751 So. 2d 94, 96

980(Fla. 1st DCA 1999). To be considered real and immediate, the

991alleged injury cannot be based on speculation or conjecture.

1000Lanoue , supra , at 97; Ward v. Bd. of Trs. of the Int. Impust

1013Fund , 651 So. 2d 1236, 1237 (Fla. 4th DCA 1995).

10239. Petitioner ' s standing argument is, essentially, that he

1033still is on probation because of subsection (2) of the rule. To

1045the contrary, there was no evidence that any probation officer

1055was inclined to request early termination of Petitioner ' s

1065probation, but for the rule. There also was no evidence that

1076any probation officer is likely to request early termina tion of

1087Petitioner ' s probation at any time in the future. Even if a

1100probation officer were inclined to request early termination of

1109Petitioner ' s probation, it is a matter of pure speculation and

1121conjecture that the judge would grant such a request.

1130Conse quently, Petitioner did not prove a real and immediate

1140injury in fact .

114410 . I n addition, the statutes governing probation do not

1155appear to confer on probationers a cognizable interest in early

1165termination of probation. Under section 944.012(6)(e), the

1172le gislative intent is to " provide intensive and meaningful

1181supervision for those on probation so that the condition or

1191situation which caused the person to commit the crime is

1201corrected. " Under section 948.04, Respondent is given

1208discretion to terminate pro bation. It does not give

1217probationers a legally cognizable right to early termination or

1226to compel Respondent to request early termination of probation.

123511. For these reasons, Petitioner did not prove his

1244standing to bring his rule challenge.

125012. At t he heart of Petitioner ' s complaint is his apparent

1263belief that the assistant state attorney would not have been

1273notified of his motion for early termination of probation , but

1283for the challenged rule. To the contrary, section 27.02(1),

1292Florida Statutes, re quired the state attorney to appear and

1302represent the state on Petitioner ' s motion for early termination

1313of probation.

131513. Since Petitioner did not prove standing, there is no

1325jurisdiction to consider the remainder of Petitioner ' s argument

1335that the chall enged rule is an invalid exercise of delegated

1346legislative authority. See Abbott Lab s. v. Mylan Pharm . , Inc. ,

135715 So. 3d 642, 651 n.2 (Fla. 1st DCA 2009).

1367DISPOSITION

1368Based on the foregoing Findings of Fact and Conclusions of

1378Law, it is ORDERED that Peti tioner ' s rule challenge is

1390dismissed.

1391DONE AND ORDERED this 29th day of October , 2013 , in

1401Tallahassee, Leon County, Florida.

1405S

1406J. LAWRENCE JOHNSTON

1409Administrative Law Judge

1412Division of Administrative Hearings

1416The DeSoto B uilding

14201230 Apalachee Parkway

1423Tallahassee, Florida 32399 - 3060

1428(850) 488 - 9675

1432Fax Filing (850) 921 - 6847

1438www.doah.state.fl.us

1439Filed with the Clerk of the

1445Division of Administrative Hearings

1449this 29th day of October , 2013 .

1456ENDNOTE

14571/ The mistake in the caption of the initial petition is being

1469corrected in this Final Order.

1474COPIES FURNISHED:

1476Ken Plante, Coordinator

1479Joint Administrative Procedure Committee

1483Room 680, Pepper Building

1487111 West Madison Street

1491Tallahassee, Florida 32399 - 1400

1496Liz Cloud, Pr ogram Administrator

1501Administrative Code

1503Department of State

1506R.A. Gray Building, Suite 101

1511Tallahassee, Florida 32399 - 0250

1516Michael D. Crews, Secretary

1520Department of Corrections

1523501 South Calhoun Street

1527Tallahassee, Florida 32399 - 2500

1532Dorothy Ridgway, De puty General Counsel

1538Department of Corrections

1541501 South Calhoun Street

1545Tallahassee, Florida 32399 - 2500

1550Jennifer Parker, General Counsel

1554Department of Corrections

1557501 South Calhoun Street

1561Tallahassee, Florida 32399 - 2500

1566Deborah B. Loucks, Esquire

1570Lawre nce D. Harris, Jr., Esquire

1576Office of the Attorney General

1581The Capitol, Plaza Level 01

1586Tallahassee, Florida 32399 - 1050

1591William R. Muldrow

15943070 Waterford Drive

1597Tallahassee, Florida 32309 - 3332

1602NOTICE OF RIGHT TO JUDICIAL REVIEW

1608A party who is adverse ly affected by this Final Order is

1620entitled to judicial review pursuant to section 120.68, Florida

1629Statutes. Review proceedings are governed by the Florida Rules

1638of Appellate Procedure. Such proceedings are commenced by

1646filing the original notice of admi nistrative appeal with the

1656agency clerk of the Division of Administrative Hearings within

166530 days of rendition of the order to be reviewed, and a copy of

1679the notice, accompanied by any filing fees prescribed by law,

1689with the clerk of the District Court of Appeal in the appellate

1701district where the agency maintains its headquarters or where a

1711party resides or as otherwise provided by law.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 03/29/2017
Proceedings: Transmittal letter from Claudia Llado forwarding the one-volume Transcript to the agency.
PDF:
Date: 06/17/2014
Proceedings: Mandate
PDF:
Date: 06/17/2014
Proceedings: Mandate filed.
PDF:
Date: 06/17/2014
Proceedings: Opinion filed.
PDF:
Date: 05/30/2014
Proceedings: Opinion
PDF:
Date: 01/28/2014
Proceedings: Index, Record, and Certificate of Record sent to the First District Court of Appeal.
PDF:
Date: 12/06/2013
Proceedings: Index (of the Record) sent to the parties of record.
PDF:
Date: 12/06/2013
Proceedings: Invoice for the record on appeal mailed.
PDF:
Date: 11/25/2013
Proceedings: Acknowledgment of New Case, First DCA Case No. 1D13-5667 filed.
PDF:
Date: 11/22/2013
Proceedings: Notice of Appeal filed and Certified copy sent to the First District Court of Appeal this date.
PDF:
Date: 10/29/2013
Proceedings: DOAH Final Order
PDF:
Date: 10/29/2013
Proceedings: Final Order (hearing held September 25, 2013). CASE CLOSED.
PDF:
Date: 10/21/2013
Proceedings: Respondent's Proposed Final Order filed.
PDF:
Date: 10/21/2013
Proceedings: Proposed Final Order of Petitioner filed.
Date: 10/09/2013
Proceedings: Transcript of Proceedings (not available for viewing) filed.
Date: 09/25/2013
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 09/23/2013
Proceedings: Request for Official Recognition filed.
PDF:
Date: 09/23/2013
Proceedings: Petitioner's Witness and (Proposed) Exhibit List filed.
PDF:
Date: 09/23/2013
Proceedings: Response to Respondent's Renewed Motion to Dismiss filed.
PDF:
Date: 09/20/2013
Proceedings: Letter to DOAH from A. Colonia enclosing Department of Correction's witness and proposed exhibit lists (exhibits not available for viewing) filed.
PDF:
Date: 09/19/2013
Proceedings: Request for Official Recognition filed.
PDF:
Date: 09/19/2013
Proceedings: Respondent's Renewed Motion to Dismiss filed.
PDF:
Date: 09/19/2013
Proceedings: Subpoena Duces Tecum (to V. Moore) filed.
PDF:
Date: 09/19/2013
Proceedings: Subpoena Duces Tecum (to S. Walters) filed.
PDF:
Date: 09/19/2013
Proceedings: Subpoena Duces Tecum (to R. Woolfork) filed.
PDF:
Date: 09/19/2013
Proceedings: Certificate of Conference filed.
PDF:
Date: 09/19/2013
Proceedings: Motion for Final Summary Order filed.
PDF:
Date: 09/18/2013
Proceedings: Notice of Filing Respondent Department of Correction's Witness and (Proposed) Exhibit List filed.
PDF:
Date: 09/17/2013
Proceedings: Petitioner's Witness and (Proposed) Exhibit List filed.
PDF:
Date: 09/13/2013
Proceedings: Corrected Certificate of Service filed.
PDF:
Date: 09/10/2013
Proceedings: Corrected Order on Qualified Representation and Motion to Dismiss and Re-Scheduling Hearing.
PDF:
Date: 09/10/2013
Proceedings: Certificate of Service (of Affidavit Request for Representation by Petitioner) filed.
PDF:
Date: 09/10/2013
Proceedings: First Amended Petition to Invalidate Rule filed.
PDF:
Date: 09/09/2013
Proceedings: Affidavit in Support of Appointment of Representative Before the Division of Administrative Hearings filed.
PDF:
Date: 09/06/2013
Proceedings: Order on Qualified Representation and Motion to Dismiss and Re-scheduling Hearing (hearing set for September 25, 2013; 9:00 a.m.; Tallahassee, FL).
PDF:
Date: 09/06/2013
Proceedings: Response to Respondent's Motion to Dismiss filed.
PDF:
Date: 09/03/2013
Proceedings: Respondent's Motion to Dismiss filed.
PDF:
Date: 08/29/2013
Proceedings: Request Representation by Qualified Representative filed.
PDF:
Date: 08/29/2013
Proceedings: Request Representation by Qualified Representative filed.
PDF:
Date: 08/28/2013
Proceedings: Opposed Motion for Continuance filed.
PDF:
Date: 08/28/2013
Proceedings: Respondent's Motion to Disqualify Authorized Representative and to Strike Improperly Filed Papers filed.
PDF:
Date: 08/28/2013
Proceedings: Notice of Appearance (Deborah Loucks) filed.
PDF:
Date: 08/28/2013
Proceedings: Notice of Appearance (Deborah Loucks) filed.
PDF:
Date: 08/26/2013
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 08/26/2013
Proceedings: Notice of Hearing (hearing set for September 20, 2013; 9:30 a.m.; Tallahassee, FL).
PDF:
Date: 08/26/2013
Proceedings: Order of Assignment.
PDF:
Date: 08/23/2013
Proceedings: Rule Challenge transmittal letter to Liz Cloud from Claudia Llado copying Ken Plante and the Agency General Counsel.
PDF:
Date: 08/23/2013
Proceedings: Appointment of Representative filed.
PDF:
Date: 08/23/2013
Proceedings: Petition to Invalidate Rule filed.

Case Information

Judge:
J. LAWRENCE JOHNSTON
Date Filed:
08/23/2013
Date Assignment:
08/26/2013
Last Docket Entry:
03/29/2017
Location:
Tallahassee, Florida
District:
Northern
Agency:
Department of Corrections
Suffix:
RX
 

Counsels

Related Florida Statute(s) (8):