Florida Dept. of Law Enforcement, Criminal Justice Standards and Training Com'n v. Dukes, 85-1822

• Decision Date: 12 March 1986
• Docket Number: No. 85-1822,85-1822
• Citation: 11 Fla. L. Weekly 639,484 So.2d 645
• Parties: 11 Fla. L. Weekly 639 FLORIDA DEPARTMENT OF LAW ENFORCEMENT, CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION, an agency of the State of Florida, Petitioner, v. John W. DUKES, Respondent.
• Court: Florida District Court of Appeals

Page 645

484 So.2d 645

11 Fla. L. Weekly 639

FLORIDA DEPARTMENT OF LAW ENFORCEMENT, CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION, an agency of the State of Florida, Petitioner, v. John W. DUKES, Respondent.

No. 85-1822.

District Court of Appeal of Florida,

Fourth District.

March 12, 1986.

Joseph S. White, Asst. Gen. Counsel, Florida Dept. of Law Enforcement, Tallahassee, for petitioner.

James E. Bradwell, Hearing Officer, Div. of Administrative Hearings, Tallahassee, for respondent.

GLICKSTEIN, Judge.

This is an appeal of a non-final recommended order of a hearing officer. We reverse and remand.

Respondent, John W. Dukes, a law enforcement officer, was accused of having sexual relations with his then fourteen-year-old stepdaughter. The stepdaughter told her mother of the alleged incident, who then contacted the Broward County Sheriff's Office. The stepdaughter allegedly signed a sworn statement, accusing respondent of having sexual relations with her. Respondent also allegedly confessed to having sexual intercourse with the child.

Subsequently, the stepdaughter retracted her statement, saying she had fabricated the incident because she was afraid to tell her mother she had contracted an infection by engaging in sexual relations with a boy she was not permitted to see.

Petitioner then filed a complaint accusing respondent of failing to maintain the qualifications of a certified law enforcement officer, which require officers to have a good moral character.

At the hearing on this matter, the hearing officer refused to let petitioner introduce respondent's confession into evidence because of petitioner's failure to comply with the corpus delicti rule, requiring proof that a crime has been committed before an admission can be introduced. The hearing officer also held that petitioner was precluded from introducing the stepdaughter's prior statement because the stepdaughter had subsequently denied having intercourse with respondent; therefore her prior statement could not be introduced for impeachment purposes or as substantive evidence. As these two pieces of evidence were the basis of petitioner's case against respondent, the hearing officer filed a recommended order of dismissal.

I

The first issue is the appealability of the hearing officer's order. Petitioner's authority for now seeking review is section 120.68(1), Florida Statutes (1985), which provides:

A party who is adversely affected by final agency action is entitled to judicial review. For purposes of this section, a district school board whose decision is reviewed under the provisions s. 231.36 and whose final action is modified by a superior administrative decision shall be a party entitled to judicial review of the final action. A preliminary, procedural, or intermediate agency action or ruling, including any order of a hearing officer, is immediately reviewable if review of the final agency decision would not provide an adequate remedy.

Accordingly, appeal is appropriate at this time "if review of the final agency decision would not provide an adequate remedy."

Petitioner contends that appeal is necessary now because (1) if it were to follow the hearing officer's recommendation in issuing its order, it would not be possible to appeal from its own order; and (2) if it were to deviate from the hearing officer's recommendation, this court would then be forced to follow the hearing officer's recommendations on appeal, based upon the present record, which reflects all of petitioner's evidence having been disallowed.

As to its first contention, petitioner is correct. In Cushing v. Department of Professional Regulation, Board of Dentistry, 416 So.2d 1197, 1198 (Fla. 3d DCA 1982), the court stated the following:

By cross-appeal, the appellee seeks to challenge alleged errors committed by the hearing officer which underlay his recommendation that Counts I and II be dismissed. Since, however, the Board adopted these very recommendations in the order now before us, the agency is thus essentially attempting to appeal from itself. It is very clear that this cannot be done, see Section 120.68(1), Fla.Stat. (1979), and the cross-appeal is therefore dismissed for lack of jurisdiction.

See also Collier County School Board v. Steele, 348 So.2d 1166 (Fla. 1st DCA 1977).

As for petitioner's second contention, we agree that since it was not permitted to introduce the bulk of its evidence, it could not say that the findings of fact of the hearing officer were not based on competent substantial evidence (at least not without being reversed by this court). While an agency is permitted under section 120.57(1)(b)9 to reject a hearing officer's conclusion of law, petitioner points out that there is nothing in the Administrative Procedure Act (APA) authorizing it to remand the case to the hearing...