GLORIA PULLEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 1st DCA | 2002-05-07
No. 1D99-4384
BOOTH, BARFIELD, and WOLF, JJ., concur.
818 So. 2d 601 Florida District Court of Appeal, First District (2002) Positive Treatment
Cited by 9 cases

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Synopsis

Gloria Pullen appeals an order authorizing her continued involuntary psychiatric placement under Florida's Baker Act. The appellate court affirms the order, holding that Pullen failed to properly preserve for appeal her argument that the evidence regarding the specific nature of harm from self-neglect lacked sufficient specificity.


Holding

The court cannot review the sufficiency and specificity of evidence challenge because it was not properly preserved for appeal. Trial counsel was required to timely articulate any objection concerning perceived insufficiency or lack of specificity in the evidence before the ALJ, and failure to do so precludes appellate review of the issue.


Headnotes

[1] In administrative proceedings, a party generally cannot raise issues on appeal that were not properly challenged or excepted to in the administrative tribunal.

[2] Failure to object to the specificity or sufficiency of evidence presented in an administrative hearing generally precludes appellate review of that issue.

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Key Quotes

“In administrative proceedings, the general rule is that a party cannot argue on appeal matters which were not properly excepted to or challenged in the administrative tribunal.”

Establishes the fundamental preservation requirement in administrative proceedings that Pullen failed to satisfy.

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Facts & Procedural History

Gloria Pullen was subject to a petition for continued involuntary placement under section 394.467(7), Florida Statutes. She was represented by an assi…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Gloria Pullen appeals an order authorizing her continued involuntary placement pursuant to section 394.467(7), Florida Statutes.1 Although the evidence presented below concerning the nature of the harm Ms. Pullen might suffer as a consequence of self-neglect may arguably have been lacking the degree of specificity required by prior decisions of this court,2 we conclude that this issue was not properly preserved for review and thus cannot be reached on appeal. Accordingly, we affirm.

Proceedings to continue the involuntary placement of an individual under the Baker Act are administrative in nature. See § 394.467(7)(a), Fla. Stat. Pursuant to section 394.467(7)(e), a person who is the subject of a petition for continued involuntary placement is generally entitled to the assistance of appointed counsel, and Ms. Pul-len was represented by an assistant public defender in the proceedings before the administrative law judge (“ALJ”). Counsel for Ms. Pullen did not, however, raise any sort of objection concerning the specificity or lack thereof of the testimony offered to support the state’s contention that absent continued involuntary placement, Ms. Pullen faced a real and present threat of substantial harm as a consequence of self-neglect.

In administrative proceedings, the general rule is that a party cannot argue on appeal matters which were not properly excepted to or challenged in the administrative tribunal. See Couch v. Commission on Ethics, 617 So. 2d 1119 (Fla. 5th DCA 1993). The existence of the preservation requirement has been acknowledged in the more narrow context of challenges to the sufficiency of the evidence in an administrative case. See Commission on Ethics v. Barker, 677 So. 2d 254 (Fla.1996).

We recognize that because the ALJ has final order authority in proceedings under section 894.467(7), the preservation mechanism afforded by the process of filing exceptions to a recommended order is not available in this situation. However, we can discern no good reason why trial counsel should not be required to timely articulate any objection he or she might have concerning a perceived insufficiency or lack of specificity in the evidence in cases of this sort. Had trial counsel made such an objection before the close of the hearing in this case, the ALJ could in her discretion have permitted the state to reopen its case to more fully describe the nature of the harm Ms. Pullen might suffer if she were to be released from the commitment facility. Cf., Alvarez v. State, 792 So. 2d 1255 (Fla. 3d DCA 2001)(in a criminal case, a trial court may in its discretion permit the state to reopen its case after it has rested and defense counsel has moved for judgment of acquittal). Counsel’s failure to object deprived the ALJ of the opportunity to take any corrective action that might have been warranted, and given the absence of any timely objection, we conclude that it would be inappropriate to consider this issue for the first time on appeal.

Accordingly, the ALJ’s order authorizing Ms. Pullen’s continued involuntary placement is AFFIRMED.

BOOTH, BARFIELD, and WOLF, JJ., concur. . This case is before us on remand from the Florida Supreme Court following its decision in Pullen v. State, 802 So. 2d 1113 (Fla.2001). Consistent with the supreme court’s mandate, we undertook a conscientious review of the record pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and thereafter directed the parties to file supplemental briefs addressing the sufficiency of the evidence and the question of whether a timely objection was required to preserve that issue for appeal.

. See, e.g., Lyon v. State, 724 So. 2d 1241 (Fla. 1st DCA 1999).


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Cited By

  • Goodwin v. Fla. Dep't OF Child. & Families & Donna Ansley, 194 So. 3d 1042 (Fla. 1st DCA 2016)
    …of Bus. & Prof'l Regulation, Const. Indus. Licensing Bd. v. Harden, 10 So. 3d 647, 649 (Fla. 1st DCA 2009). “[A] party cannot argue on appeal matters which were not properly excepted to or challenged in the administrative tribunal.” Pullen v. State, 818 So. 2d 601, 602 (Fla. 1st DCA 2002). Appellant filed a one-page memorandum in the administrative appeal proceeding below challenging DCF’s PRA calculation. But her challenge didn’t address the applicability of Rule 65A-1.7141(l)(g), Even after DCF cited and re…
  • Heart OF Live OAK, Inc. v. State, 196 So. 3d 1290 (Fla. 1st DCA 2016)
    …g Yachting Arcade, Inc. v. Riverwalk Condo. Assoc., Inc., 500 So. 2d 202, 204 (Fla. 1st DCA 1986)). “[A] party cannot argue on appeal matters which were [*1291] not properly excepted to or challenged in the administrative tribunal.” Pullen v. State, 818 So. 2d 601, 602 (Fla. 1st DCA 2002); see also Palm Constr. Co. of W. Fla. v. Dep’t of Fin. Servs., 153 So. 3d 948, 949 (Fla. 1st DCA 2014). Here, as to Points I and II, we find that Appellant met Appellee’s arguments below “with silence” and therefore, failed…
  • Burke v. Ne. Fla. State Hosp., 94 So. 3d 725 (Fla. 1st DCA 2012)
    …PER CURIAM. AFFIRMED. Pullen v. State, 818 So. 2d 601 (Fla. 1st DCA 2002). PADOVANO, THOMAS and CLARK, JJ., concur.…

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