CLIFFORD J. BOWLING, APPELLANT,
v.
FLORIDA DEPARTMENT OF CORRECTIONS, APPELLEE
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Bowling, an inmate, appealed a DOC order but lacked party status to pursue the proceeding. The court dismissed the appeal because he failed to initiate the required administrative rule-challenge proceeding under Section 120.56 before filing his appeal.
The appeal was dismissed because Bowling failed to initiate the required Section 120.56 rule-challenge proceeding before the Division of Administrative Hearings, and because as an inmate he lacked party status to the Section 120.57 proceeding he utilized. Even had he been a party to the Section 120.57 proceeding, his failure to exhaust Section 120.56 remedies would have defeated his standing.
[1] An appeal will be dismissed for failure to initiate a rule challenge proceeding before the Division of Administrative Hearings as required by Section 120.56(2), Florida S…
[2] Dismissal of an appeal for failure to exhaust administrative remedies is without prejudice to the appellant's right to initiate a proper administrative rule challenge pro…
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Join FLexlaw to unlock all legal intelligence“appellant has neglected a clear point of entry to Section 120.56 proceedings by filing a rule challenge before the Division of Administrative Hearings as required by Section 120.56(2), Florida Statutes (1979)”
Establishes the mandatory procedural requirement that appellant failed to satisfy
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Join FLexlaw to unlock all legal intelligenceBowling, an inmate of a Florida correctional institution, attempted to challenge an agency policy that he claimed was invalid because it was not regul…
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PER CURIAM.
Sua sponte, we dismiss this appeal since appellant has neglected a clear point of entry to Section 120.56 proceedings by filing a rule challenge before the Division of Administrative Hearings as required by Section 120.56(2), Florida Statutes (1979). See Krestview Nursing Home v. Dept. of Health, 381 So. 2d 240 (Fla.1st DCA 1979). Compare Rice v. Department of Health and Rehabilitative Services, 386 So. 2d 844 (Fla.1st DCA 1980).
The appeal is dismissed without prejudice to appellant’s right to initiate an administrative rule challenge proceeding under Section 120.56.
DISMISSED.
ERVIN and SHAW, JJ., and WOODROW M. MELVIN (Ret.), Associate Judge, concur. ON MOTION FOR REHEARING AND CLARIFICATION
PER CURIAM.
In this cause, as well as in Douglas v. Florida Department of Corrections, 388 So. 2d 587 (Fla.1st DCA 1980), a case also dismissed upon facts similar to those before us, we neglected to state that appellants, inmates of a Florida correctional institution, are denied party status to a Section 120.57 proceeding. See Section 120.52(10)(d), Florida Statutes (1979). Bowling and Douglas, as written, may cause confusion because we have previously held that the failure to exhaust Section 120.56 rule-challenge remedies does not prevent an appellate court from entertaining such a challenge from an order entered in 120.57 proceedings. See State ex rel. Dept. of General Serv. v. Willis, 344 So. 2d 580, 591-92 (Fla.1st DCA 1977). Note also that Section 120.56(5) provides: “Failure to proceed under this section shall not constitute failure to exhaust administrative remedies.”
The difficulty here, as in Douglas, is of course that appellant had no status as a party to a Section 120.57 proceeding which he had unsuccessfully utilized to attack agency policy, claimed by him invalid because not regularly adopted as a rule. Had he properly been a party to such a proceeding, even though he neglected a clear point of entry to Section 120.56 proceedings, he nevertheless would have possessed sufficient standing to appeal the order entered. Lacking such standing, Bowling’s petition for rehearing is
DENIED.
ERVIN and SHAW, JJ., and WOODROW M. MELVIN (Ret.), Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Nord v. Fla. Parole & Prob. Comm'n, 417 So. 2d 1176 (Fla. 1st DCA 1982)…xhaust administrative remedies. To the same effect, see Section 120.54(4)(d). See, also, Postal Colony Co., Inc. v. Askew, 348 So. 2d 338 (Fla. 1st DCA 1977), affirmed 372 So. 2d 913 (Fla.1978). But, cf. Bowling v. Florida Department of Corrections, 389 So. 2d 1031 (Fla. 1st DCA 1980), and Douglas v. Florida Department of Corrections, 388 So. 2d 587 (Fla. 1st DCA 1980), in which this court dismissed inmate appeals because in each instance the inmate neglected a clear point of entry to a rule challenge pursuant…
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Hunter v. Fla. Dep't OF Corr., 390 So. 2d 1227 (Fla. 1st DCA 1980)…. See Section 120.-52(10)(d), Florida Statutes (1979). However, this appeal is dismissed without prejudice to appellant’s right to initiate an administrative rule challenge proceeding under § 120.56. See Bowling v. Florida Department of Corrections, 389 So. 2d 1031, rehearing denied with opinion, Case No. 00-468 (Fla. 1st DCA, November 7, 1980); Douglas v. Florida Department of Corrections, 388 So. 2d 587, Case No. 00-426 (Fla. 1st DCA, August 26, 1980). DISMISSED. ROBERT P. SMITH, Jr., BOOTH and SHAW, JJ.…
Authorities Cited
- State of Fla. ex rel. Dep't OF Gen. Servs. v. Willis, 344 So. 2d 580 (Fla. 1st DCA 1977)
- Rice v. Dep't of Health & Rehabilitative Servs., 386 So. 2d 844 (Fla. 1st DCA 1980)
- Krestview Nursing Home v. Dep't of Health & Rehabilitative Servs., 381 So. 2d 240 (Fla. 1st DCA 1979)
- Douglas v. Fla. Dep't OF Corr., 388 So. 2d 587 (Fla. 1st DCA 1980)
- Slingerland v. Hurley, 388 So. 2d 587 (Fla. 4th DCA 1980)