Boyette v. State, Professional Practices Council

• Decision Date: 25 May 1977
• Docket Number: No. DD-465,DD-465
• Citation: 346 So.2d 598
• Parties: Leonard Robert BOYETTE, Petitioner, v. STATE of Florida PROFESSIONAL PRACTICES COUNCIL, Respondent.
• Court: Florida District Court of Appeals

Page 598

346 So.2d 598

Leonard Robert BOYETTE, Petitioner, v. STATE of Florida PROFESSIONAL PRACTICES COUNCIL, Respondent.

No. DD-465.

District Court of Appeal of Florida, First District.

May 25, 1977.

Rivers Buford, Jr., Tallahassee, and Phillip K. Beck, Lakeland, for petitioner.

Thomas W. Lager and Ronald C. LaFace, of LaFace & Baggett, Tallahassee, for respondent.

ERVIN, Judge.

This is a petition for review of an order of the State Board of Education revoking the teaching certificate of the petitioner, Leonard Robert Boyette, for a period of five years. A petition for revocation of Boyette's certificate was filed by the Chairman of the Professional Practices Council in which it was alleged that during the 1973-74 school years, petitioner conducted himself in a manner "which seriously reduces his effectiveness as an employee of the school board." Following a hearing held before a committee of the PPC, the committee entered its findings of fact, conclusions and recommendations. Its sole finding of fact was:

"During the 1973-74 school year Leonard Robert Boyette did commit forcible rape on a fellow school teacher who was a virgin, and thereby conducted himself in a manner which seriously reduces his effectiveness as an employee of the school board."

Boyette then filed his objection to the committee's recommendation before the State Board of Education, which entered an order directing that a hearing examiner be appointed from the Department of Administration to hear Boyette's exceptions and promulgate recommendations to the Board. After hearing argument by counsel and reviewing the record, the hearing officer made his report and recommendations on Boyette's objections. He made extensive findings of fact and concluded that the record of the proceeding did not contain competent, substantial evidence to support critical findings of fact as set forth in paragraph three of the PPC's recommended order. It was thereupon recommended that the hearing committee's findings of fact, conclusions and recommendations not be accepted and that a final order be entered dismissing the charges for failure of proof. The matter then came before the State Board of Education which, by a vote of four of the five members present, rejected the report and recommendations of the hearing examiner and revoked Boyette's certificate for a period of five years.

Boyette was an assistant football and basketball coach, head track coach and instructor of physical education at Crystal River High School. He began there in the fall of 1973 and was granted a continuing contract in April, 1974. In December, 1973, he was involved in the incident which led to the revocation proceeding. A female elementary school teacher in nearby Inverness agreed to go on a blind date with Boyette. They went to his trailer for dinner. After dinner they sat on the couch in the living room and began kissing. At this point the testimony of Boyette and the teacher conflicts. Boyette testified that while his companion was at first reluctant to go with him into his bedroom, she nevertheless went freely and without resistance. There she engaged in intercourse with him freely and voluntarily and without the exertion of any force on his part, although he admitted to being persistent. The complainant, however, testified that Boyette pulled her off the living room couch and down the hall to the bedroom, and the more she resisted his advances, the more hostile and aggressive he became. It is significant to note, however, as the hearing officer observed, that the victim testified Boyette did not threaten her either verbally or with a weapon; however she found his demeanor threatening. She made a phone call from Boyette's trailer to her roommate but said nothing of the incident. Following the phone call they engaged in intercourse again.

After being taken home by Boyette, she immediately told her roommate what had transpired and went to bed. No report was ever made to the police of the incident. Nor did she report the incident to the State Board of Education. The following October she was approached by a representative of the PPC and then gave her information concerning the event.

The hearing officer, after examining the transcription of the testimony before the PPC, concluded that it had not been established by a preponderance of the evidence before the PPC that Boyette committed the criminal offense of sexual battery as defined by the applicable Florida Statutes.

His recommendation to the Board stated that since there was no definition of the phrase "forcible sex" of which Boyette was found "guilty," it was necessary to refer to the criminal statutes ¹ relating to sexual battery to determine whether such an offense occurred. He concluded, after referring to the statutes, the record did not establish that Boyette exerted such force as to put the prosecutrix in such fear that she was compelled to submit, nor did it establish that he threatened to use force or violence likely to cause serious personal injury to her, thereby forcing her to submit.

We agree with the hearing officer's conclusions. While the courts will determine whether there is sufficient evidence to support administrative action which is attacked, and will determine the legal effect of the evidence, they will not ordinarily review conflicting evidence. The question of the weight of the evidence is usually one for the administrative agency and not for the courts, even though the court may have reached a different conclusion on the same testimony. E. g., Hammond v. Curry, 153 Fla. 245, 14 So.2d 390 (1943); Butler v. Carter, 123 So.2d 313 (Fla.1960); Florida State Board of Dental Examiners v. Feinglass, 166 So.2d 686 (Fla. 3rd DCA 1964). Still, our responsibility on review is to determine whether there is substantial competent evidence to sustain the agency's action. Since the conduct complained of was "forcible rape", reference to criminal cases where appellate courts have found it necessary to weigh the sufficiency of the evidence involving the offense of sexual battery is instructive.

In O'Bryan v. State, 324 So.2d 713 (Fla. 1st DCA 1976), this court reversed a conviction of rape when the evidence failed to show that any weapons were used, no threats were made and there was no evidence of any injury. We noted that in Bailey v. State, 76 Fla. 213, 79 So. 730 (1918), a conviction for rape was reversed even though the victim was seized by her arm, thrown on the bed and choked, where the evidence failed to show that she had made little or no resistance to the defendant's advances. We concluded in O'Bryan:

"The offense of forcible rape is never established where the evidence presented by the state fails to show that the act was accomplished by force and against the will of the victim, but only shows that she protested. Bowden v. State, 152 Fla. 715, 12 So.2d 887 (1943)." 324 So.2d at 715.

In the recent opinion of Tibbs v. State, 337 So.2d 788 (Fla.1976), the Supreme Court reversed a conviction for rape and murder even though the victim of the rape identified Tibbs as the...