Fort Walton Beach Council agenda — 08-08-2006 ‎(executive)‎ — reading text

sustain a false imprisonment claim, there must be FN7. Pursuant to section 20.315, DOC was proof of imprisonment without color of authority). created as an executive agency. & 20.315. See also Jackson v. Navarro. 665 So. 2d 340 ( Fla. 4th Fla. Stat. (2003 ). DCA 1995) ( same). The entry of summary judgment @ 2006 Thomson/West. No Claim to Orig. U. S. Govt. Works. 892 So. 2d 554 Page 4 892 So.2d 554, 30 Fla. L.Weekly D333 Cite as: 892 So. 2d 554) sentence); Slav v. Singletarv. 676 So.2d 456. 457 on this claim was, therefore, entirely proper. Fla. 1 st DCA 1996) (" [ T] he sentencing documents at f21f31 Whipple nevertheless maintains that DOC's issue here in fact properly award appellant all credit failure, as an executive agency, to implement the to which he was legally entitled, and are sufficient to concurrent and coterminous language of the Dade impose a duty on the Department of Corrections to sentence was a violation of the separation of powers apply that credit. "). doctrine. We again disagree. The separation of powers doctrine has been expressly codified in article ill Whipple' s second argument on this appeal is that II. section 3 of the Florida Constitution, which to the extent that there was an ambiguity about the divides state government into three branches and concurrent and coterminous language of the Dade prohibits one branch from exercising the powers of sentence, that ambiguity had to be resolved in favor the other two branches: of his release under the principle of lenity applied in Branches of Government-- The powers of the state criminal cases. Therefore, Whipple urges that the government shall be divided into legislative, summary judgment must be reversed because DOC executiveand judicial branches. personNo violated the principle of lenity. belonging to one branch shall exercise any powers appertaining to either of the other branches unless The rule of lenity has been codified in section expressly provided herein. 775. 021 and provides that: The Florida Supreme Court has explained that the T] he provisions of this code and offenses defined separation of powers doctrine encompasses two by other statutes shall be strictly construed; when fundamental prohibitions. liThe first is that no branch the language is susceptible of differing may encroach upon the powers of another. The constructions, it shall be construed most favorably second is that no branch may delegate to another to the accused. II branch its constitutionally assigned power. Bush v. See & 775. 0210). Fla. Stat. ( 988). This statute Schiavo. 885 So. 2d 321 ( Fla.2004) ( quoting Chiles v. also provides that: Children A. B. C. D. E. & F. 589 So.2d 260. 264 The intent of the Legislature is to convict and Fla. 1991 )). sentence for each criminal offense committed in the course of one criminal episode or transaction Whipple is apparently taking the position that DOC's and not to allow the principle of lenity as set forth refusal to implement the concurrent and coterminous in subsection ( 1) to determine legislative intent. language of the Dade sentence was an encroachment See & 775. 021(4)( b)' Fla. Stat. ( 1988). In by an executive agency upon the powers of judiciary. construing these two statutory provisions, we find no The flaw in this argument, however, as previously merit to Whipple' s argument. discussed, is that the concurrent and coterminous language of *559 the Dade sentence is deemed to be As correctly pointed out by the DOC, there was no a legal nullity or mere surplusage by the judiciary ambiguity in the Dade sentence. The concurrent and itself. See Ex Parte Sams. supra. and Rohaus v. coterminous language of this sentence simply could State. supra. Indeed, all of the cases relied upon by not be given legal effect due to the expiration of Whipple have found a violation of the separation of Whipple' s Duval sentence. The Dade sentencing powers doctrine only where another branch of order never mentioned the S1. Johns sentence, even government has failed to recognize a valid or lawful though Whipple was serving the St. Johns sentence judicial order or judgment. See Bush v. Schiavo. when the Dade sentence was imposed. In the holding that a legislative enactment absence of an expressed intent on the part of the unconstitutionally encroached upon the power of the Miami-Dade court that the Dade sentence run judiciary where the act effectively reversed a concurrent and coterminous with the 8t. Johns properly rendered final judgment); see also A-foore v. sentence, DOC was statutorily obligated, as stated Pearson. 789 So. 2d 316. 319 ( Fla. 200l) finding ( that earlier, to run the Dade sentence consecutive to the DOC violated the separation of power doctrine when 8t. Johns sentence. See & 921. 16( 1). Fla. Stat. it refused to implement an otherwise lawful 1995 ). The rule of lenity, therefore, has no coterminous sentence); Hudson v. State. 682 So.2d applicability herein. 657 ( Fla. 3d DCA 1996) ( where trial court had exercised its lawful discretion not to deem the ill Finally, Whipple contends that DOC violated his defendant a habitual violent felony offender and right against double jeopardy when it failed to give impose mandatory sentence, the DOC lacked effect to the concurrent and coterminous language of authority to add a mandatory term to defendant' s the Dade sentence. We find no merit to this @ 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.  Page 1 of 1 Jestlaw: t\ Date of Printing: AUa 03, 2006 KEYCITE P> Bush v. Schiavo, 885 So. 2d 321, 29 Fla. L. Weekly S515 ( Fla., Sep 23, 2004) (NO. SC04- 925) History Direct History Bush v. Schiavo, 885 So. 2d 321, 29 Fla. L.Weekly S515 ( Fla. Sep 23, 2004) ( NO. SC04- 925), rehearing denied ( Oct 21, 2004) Certiorari Denied by H 2 Bush v. Schiavo, 543 U.S. 1121, 125 S. Ct. 1086, 160 L.Ed.2d 1069, 73 USLW 3354, 73 USLW 3430, 73 USL W 3448 (V.S. F1a. Jan 24, 2005) (NO. 04- 757) Negative-Cif ng References ( U. S. A.) Distinguished by H 3 Whipple v. Department of Corrections, State, 892 So.2d 554, 30 Fla. L.Weekly D333 (Fla. App. 3 Dist. Feb 02, 2005) (NO. 3D03- 2877), rehearing denied (Feb 02, 2005) * * UN: 1 ( So. 2d) Q Copyright 2006 West, Carswell, Sweet & Maxwell Asia and Thomson Legal & Regulatory Limited, ABN 64 058 914 668, or their Licensors. All rights reserved. https:// web2. westlaw .comlprint/printstream. aspx?prft=HTMLE& destination= atp& sv= Split& rs= W... 8/ 3/ 2006  Page 17 of 17 885 So.2d 321 Page 17 885 So.2d 321, 29 Fla. L.Weekly S515 Cite as: 885 So. 2d 321) Research Council, In Support of Appellant, Governor Jeb Bush ( Jan. 01, 2004) Original Image of this Document ( PDF) 2004 WL 1949087 ( Appellate Brief) Amicus Curiae Brief in Support of Michael Schiavo as Guardian of the Person of Theresa Marie Schiavo Filed with the Consent of the Parties) ( Jan. 01, 2004) Original Image of this Document (PDF) 2004 WL 2002245 ( Appellate Brief) Amicus Brief of the Academy of Florida Elder Law Attorneys, Inc., and The National Academy of Elder Law Attorneys ( Jan. 01, 2004) Original Image of this Document ( PDF) 2004 WL 2002246 ( Appellate Brief) Amicus Brief of the the Elder Law Section of the Florida Bar ( Jan. 01, 2004) Original Image of this Document ( PDF) 2004 WL 2291425 ( Appellate Petition, Motion and Filing) Motion for Rehearing and Clarification 2004) END OF DOCUMENT 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. https:// web2. westIaw.comJprintlprintstream. aspx?utid=%257b87F IE849- A561- 497D- 9703- 8/ 3/ 2006 0CFDA...