McNair v. Criminal Justice Standards and Training Com'n, BS-456

• Decision Date: 29 December 1987
• Docket Number: No. BS-456,BS-456
• Citation: 518 So.2d 390,13 Fla. L. Weekly 66
• Parties: 13 Fla. L. Weekly 66 Fred W. McNAIR, Appellant, v. CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION, Appellee.
• Court: Florida District Court of Appeals

Page 390

518 So.2d 390

13 Fla. L. Weekly 66

Fred W. McNAIR, Appellant, v. CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION, Appellee.

No. BS-456.

District Court of Appeal of Florida,

First District.

Dec. 29, 1987.

William W. Corry, Tallahassee, for appellant.

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

WENTWORTH, Judge.

Appellant seeks review of a Criminal Justice Standards and Training Commission order by which his certification as a correctional officer was revoked pursuant to sections 943.1395(5) and 943.13(4), Florida Statutes. Appellant contends the Commission's interpretation of sections 943.1395(5) and 943.13(4) as compelling appellant's decertification, upon entry of his nolo contendere plea to a felony, improperly converted his plea into a conviction. He further contends that these statutes violate constitutional principles of separation of powers and substantive due process. We find that the Commission's interpretation of sections 943.1395(5) and 943.13(4) is a permissible agency construction, as the state may legitimately bar from employment as correctional officers those who plead guilty or nolo contendere to felonies. We find no constitutional violations are presented and therefore affirm.

Appellee brought an administrative complaint against appellant, a correctional officer employed by the Department of Corrections since 1979, after he pled nolo contendere to the felony of aggravated assault. The trial court withheld adjudication of guilt. Appellee alleged in its complaint that appellant was ineligible to hold a certificate as a correctional officer pursuant to sections 943.13(4) and 943.1395(5), Florida Statutes. Section 943.13(4) precludes any person who, after July 1, 1981, pleads guilty or nolo contendere to a felony from being employed as a correctional officer, notwithstanding suspension of sentence or withholding of adjudication. Section 943.1395(5) provides that "the Commission shall revoke the certification of any officer who is not in compliance with the provisions of s. 943.13(1)-(10)...."

The case proceeded to informal hearing. Appellee continued the hearing to allow appellant to attempt to withdraw his plea in the trial court or to seek expunction of the probation order. Neither alternative was available, however, because the trial court no longer had jurisdiction to consider a motion to withdraw the plea, and appellant was not eligible for expunction because he had prior adjudications of guilt for misdemeanor offenses. Following a vote by members, appellee entered an order revoking appellant's certification.

Appellant argues that the commission's interpretation of section 943.1395(5), providing that the commission "shall revoke the certificate of any officer ... not in compliance with s. 943.13(1)-(10) ...," as mandatory is error as that construction impermissibly converts a nolo contendere plea into a conviction under section 943.13(4). We disagree. A plea of nolo contendere or guilty is not evaluated under section 943.13(4) as conclusive evidence of the commission of a wrongdoing. Instead, entry of the plea itself creates noncompliance with section 943.13(4), which, under section 943.1395(5), results in a revocation of certification. This statutory scheme is distinguishable from that in Ayala v. Department of Professional Regulation, 478 So.2d 1116 (Fla. 1st DCA 1985), in which a mandatory interpretation of section 458.331(1)(c), providing that a nolo plea "shall be considered a conviction," did impermissibly convert the plea into a conviction. An administrative construction...