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

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM R. MULDROW, JR. ,

Petitioner ,

vs. Case No. 13 - 3223RX

DEPARTMENT OF CORRECTION S , 1/

Respondent .

/

FINAL ORDER

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

2013, in Tallahassee, Florida, before J. Lawrence Johnston, the

Administrative Law Judge designated by the Division of

Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: William R. Muldrow

3070 Waterford Drive

Tallah assee, Florida 32309 - 3332

For Respondent: Deborah B. Loucks, Esquire

Lawrence D. Harris, Jr., Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

STATEMENT OF THE ISSUE

The issue in this case is whether to grant the petition

challenging the validity of Florida Administrative Code

Rule 33 - 302.111(2).

PRELIMINARY STATEMENT

On August 23, 2013, Petitioner filed a petition to

invalidate Florida Administrative Code Rule 33 - 302.111 (the

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

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

the hearing, Petitioner presented the testimony of Stefanie

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

Exhibits 1 and 2 were received into evidence.

The Transcript of the final hearing was filed with DOAH on

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

have been considered.

FINDING S OF FACT

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

probatio n and under the supervision of the Department of

Corrections.

2. Petitioner obtained a form pro se motion for early

termination of probation from the Leon County circuit court

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

probation officer and the assistant state attorney to object or

not object to early termination and to comment.

3. Petitioner presented the form to his probation officer,

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

4 . The supervisor indicated neither an objection nor lack

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

court to determine if Petitioner had met the vehicle impoundment

condition of his probation, but that Petitioner had met all

other requirements to be considered for early ter mination of

probation.

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

June 2013. The judge notified the assistant state attorney

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

the hearing, the assistant state attorney objected t o early

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

the assistant state attorney also checked the field on the form

motion indicating her objection to early termination. The judge

denied the motion.

6 . Petitioner blames the denial of his motion on

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

(1) Before a correctional probation

officer considers recommending an offender

for early termination of supervision, the

following criteria shall be met:

(a) Completion of one - half of the

s upervision period;

(b) Payment in full of restitution, fines,

and court costs;

(c) Cost of supervision is current;

(d) All special conditions of supervision

are fulfilled;

(e) A Florida Crime Information

Center/National Crime Information Center

(FC IC/NCIC) records check reveals no new

arrest during the course of supervision of

which the sentencing or releasing authority

has not been previously notified; and

(f) No violations of supervision are

pending.

(2) In order for an officer to request an

e arly termination of supervision from the

sentencing or releasing authority, approval

must be obtained from the officer ' s

supervisor, the State Attorney ' s Office,

and the victim, if the offense involved a

victim. If the State Attorney ' s office

denies the r equest, or the victim opposes

the early termination, the department will

not proceed with the early termination

recommendation. The officer shall not

disclose a victim ' s objection to the

offender.

(3) The officer shall notify the offender

of the judge ' s decision upon receipt of the

judge ' s response. If the offender was

adjudicated guilty, the officer shall

review the restoration of civil rights

process with the offender.

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

exercise of delegated le gislative authority because it exceeds

the statutory grant of rulemaking authority and enlarges,

modifies, or contravenes the specific provisions of law

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

Specifically, Petitioner contrasts the rule with section

948.04(3), Florida Statutes, which states:

If the probationer has performed

satisfactorily, has not been found in

violation of any terms or conditions of

supervision, and has met all financial

sanctions imposed by the court, including,

but not limited to, fines, court costs, and

restitution, the Department of Corrections

may recommend early termination of

probation to the court at any time before

the scheduled termination date.

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

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

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

Florida Statutes, for both.

CONCLUSIONS OF LAW

7 . Section 120.56 allows any person " substantially

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

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

invalid. The rule or part thereof declared invalid shall become

void when the time for filing an appeal expires. "

§ 120.56(3)(b), Fla. Stat.

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

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

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

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

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

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

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

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

alleged injury cannot be based on speculation or conjecture.

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

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

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

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

the contrary, there was no evidence that any probation officer

was inclined to request early termination of Petitioner ' s

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

any probation officer is likely to request early termina tion of

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

probation officer were inclined to request early termination of

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

conjecture that the judge would grant such a request.

Conse quently, Petitioner did not prove a real and immediate

injury in fact .

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

appear to confer on probationers a cognizable interest in early

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

le gislative intent is to " provide intensive and meaningful

supervision for those on probation so that the condition or

situation which caused the person to commit the crime is

corrected. " Under section 948.04, Respondent is given

discretion to terminate pro bation. It does not give

probationers a legally cognizable right to early termination or

to compel Respondent to request early termination of probation.

11. For these reasons, Petitioner did not prove his

standing to bring his rule challenge.

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

belief that the assistant state attorney would not have been

notified of his motion for early termination of probation , but

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

Florida Statutes, re quired the state attorney to appear and

represent the state on Petitioner ' s motion for early termination

of probation.

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

jurisdiction to consider the remainder of Petitioner ' s argument

that the chall enged rule is an invalid exercise of delegated

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

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

DISPOSITION

Based on the foregoing Findings of Fact and Conclusions of

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

dismissed.

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

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto B uilding

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 29th day of October , 2013 .

ENDNOTE

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

corrected in this Final Order.

COPIES FURNISHED:

Ken Plante, Coordinator

Joint Administrative Procedure Committee

Room 680, Pepper Building

111 West Madison Street

Tallahassee, Florida 32399 - 1400

Liz Cloud, Pr ogram Administrator

Administrative Code

Department of State

R.A. Gray Building, Suite 101

Tallahassee, Florida 32399 - 0250

Michael D. Crews, Secretary

Department of Corrections

501 South Calhoun Street

Tallahassee, Florida 32399 - 2500

Dorothy Ridgway, De puty General Counsel

Department of Corrections

501 South Calhoun Street

Tallahassee, Florida 32399 - 2500

Jennifer Parker, General Counsel

Department of Corrections

501 South Calhoun Street

Tallahassee, Florida 32399 - 2500

Deborah B. Loucks, Esquire

Lawre nce D. Harris, Jr., Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

William R. Muldrow

3070 Waterford Drive

Tallahassee, Florida 32309 - 3332

NOTICE OF RIGHT TO JUDICIAL REVIEW

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

entitled to judicial review pursuant to section 120.68, Florida

Statutes. Review proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing the original notice of admi nistrative appeal with the

agency clerk of the Division of Administrative Hearings within

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

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

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

district where the agency maintains its headquarters or where a

party resides or as otherwise provided by law.