Sharrard v. State

• Decision Date: 05 January 2009
• Docket Number: No. 4D08-1119.,4D08-1119.
• Citation: 998 So.2d 1188
• Parties: Thomas D. SHARRARD, Circuit Administrator, State of Florida Department of Corrections, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida District Court of Appeals

998 So.2d 1188

Thomas D. SHARRARD, Circuit Administrator, State of Florida Department of Corrections, Petitioner, v. STATE of Florida, Respondent.

No. 4D08-1119.

District Court of Appeal of Florida, Fourth District.

January 5, 2009.

Bill McCollum, Attorney General, Tallahassee, and Charles M. Fahlbusch, Assistant Attorney General, Fort Lauderdale, for petitioner.

W. Anthony Loe, Weston, West Palm Beach, for respondent.

PER CURIAM.

Thomas D. Sharrard (Sharrard), as circuit administrator for the State of Florida Department of Corrections (the Department), seeks certiorari and prohibition relief from an order of the Broward County Circuit Court dated March 11, 2008, which directed the Department, within thirty days, to effectuate procedures to comply with the court's order of June 3, 2003, which in turn requires the Department to effect a warrantless arrest of criminal defendants on community control or probation in Judge Stanton Kaplan's division upon a defendant's testing positive for a prohibited substance, without confirmation of the results by an authorized laboratory. As the Department has had difficulty obtaining the cooperation of local law enforcement to transport offenders to jail in accordance with the 2003 order, the 2008 order requires the testing officer or the Department itself to transport the alleged offender to jail. We treat the petition for writ of certiorari as an appeal from an injunction order and reverse. We also grant prohibition relief.

Until recently, the Department had agreements with local law enforcement agencies which arrested and transported defendants pursuant to the 2003 order at the Department's request, but due to funding problems, the Broward Sheriff's Office (BSO) and local municipal police departments have refused to continue doing so with respect to three of the Broward Circuit's probation offices. Thus, Sharrard informed Judge Kaplan that the Department might not be able to continue complying with the 2003 order. The judge issued an order to show cause and the Department served a response which explained that probation officers have neither the training nor the resources to transport offenders to jail; the Department's procedures require probation officers to contact local law enforcement for assistance with such arrest and transport; and probation officers drive their own personal vehicles, in which Department procedures prohibit the transport of offenders.

Following a hearing before the judge, in which Sharrard was asked to describe the steps taken by the Department to avoid releasing alleged offenders in violation of the judge's standing order, the trial court issued an order finding that the Department has been on notice since 2004 that arresting and transporting defendants was causing an undue burden on local law enforcement agencies; however, it had shirked its responsibilities by not undertaking to do anything, and that the responsibility of seeing that offenders did not go free was on the Department. It found that the Department claimed it did not have the personnel, equipment, or facilities to effectuate its own arrests and transport; yet the Department staffs 135 prison facilities and routinely transports prisoners between facilities; the local probation officers are considered law enforcement officers, with arrest powers and the right to carry firearms and other equipment, and they could be trained to arrest and transport violators; offenders could be secured with leg irons, waist chains, and handcuffs, and could be bolted to a plate in the floor until the transporting officer could transport them, eliminating any need for holding cells; the Department could transfer trained officers, hire local off-duty law enforcement to handle arrest and transport; train current employees; utilize marked patrol vehicles, which were offered to the Department on a one-time basis by local law enforcement; hire a private security company to transport; obtain the restraining devices mentioned above; and bolt a metal plate to the floor. The court made it clear it was not directing the Department which was the best solution, but merely pointed out suggestions.

The judge found that section 948.06, Florida Statutes, which provides that probation officers "may" arrest or request local law enforcement to arrest offenders without warrant, does not excuse the department from arresting and transporting if the local law enforcement agency refuses a request to arrest and transport; it does not allow the probation officers to release the offenders, burdening the police with the task of searching for and arresting them, at significant cost and with the community at risk; nor does the statute reduce the department's obligation to comply with the 2003 order.

The order directs the Department "to immediately effectuate procedures necessary to comply with the said Order within thirty (30) days from the date hereof" or the judge would take further action to ensure compliance.

We reject the state's argument that review of the 2008 order is time-barred because the separation of powers issue could just as well have been asserted with respect to the 2003 order, and the time to challenge that one expired in July 2003. While we agree that Judge Kaplan has subject matter jurisdiction over the individuals who are on probation and community control in his division, to the extent his order violated the separation of powers by encroaching on the authority delegated by statute to the executive branch of government, namely the Department, prohibition lies, which has no time limit.

In both orders, Judge Kaplan appears to have usurped the discretion granted by the...