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JOE NEWMANS, Appellant, v. STATE OF FLORIDA, DIVISION OF RETIREMENT, Appellee. 1st District. Case No. 96-3634. Opinion filed September 18, 1997. An appeal from order of the Division of Retirement. J. Victor Africano, Live Oak, for Appellant. Counsel: Jeffrey M. Dikman, Assistant Attorney General, Department of Legal Affairs, Tallahassee, for Appellee. (PER CURIAM.) Appellant, Joe Newmans, appeals an order of the Division of Retirement in which the Division determined that appellant had forfeited all rights and benefits under the Florida Retirement System and ordered appellant to refund all retirement benefits paid to him prior to suspension of those benefits. We affirm. Appellant was the elected Sheriff of Baker County for 20 years. In 1992, Federal Drug Enforcement agents began investigating illegal drug activities in Baker County. In October, 1992, appellant's campaign for re-election was unsuccessful and he began to collect retirement benefits effective January, 1993. On April 20, 1994, the federal grand jury issued a five count indictment charging appellant with one count of conspiracy to manufacture and distribute marijuana, three counts of manufacturing marijuana, and one count of conspiracy to obstruct justice. On June 27, 1995, appellant pled guilty to Count Five of the indictment, which charges a conspiracy to obstruct justice, as a result of a negotiated plea. On September 18, 1995, the Division notified appellant of its intent to terminate his retirement benefits pursuant to sections 121.091(5)(f), and 112.3173(2)(e)3., 4. and 6., Florida Statutes. Appellant requested a formal hearing, and the controversy was forwarded to the Division of Administrative Hearings. At the conclusion of the hearing, the hearing officer recommended that the Division determine that appellant had forfeited his right to a retirement benefit under the Florida Retirement System pursuant to section 112.3173(3), Florida Statutes. Under this statute:
A ``specified offense'' for purposes of forfeiture includes embezzlement, theft, and bribery. The hearing officer found that appellant did not commit an offense of embezzlement, theft or bribery. Section 112.3173(2)(e)6., however, provides that ``specified offense'' includes:
The hearing officer concluded that appellant committed a ``specified offense'' as defined in section 112.3173(2)(e)6. The hearing officer noted that the Sheriff takes an oath of office in which he swears that he will support, protect, and defend the Constitution and government of the United States and of the State of Florida and will faithfully perform the duties of Sheriff. Based upon the charges contained in the federal indictment and the facts admitted in open court by appellant during the colloquy accompanying his guilty plea, the hearing officer found that appellant committed acts ``with the willful intent to defraud the public of the right to receive the faithful performance of his duties as Sheriff of Baker County. The public had a right to expect the Sheriff to cooperate with a federal investigation and a right to expect the Sheriff not to conspire to manufacture and deliver marijuana, a crime under the laws of Florida.'' The Division, in the final order, agreed that the acts committed by appellant were done in violation of his public duty as Sheriff to uphold the laws of the State of Florida and were in violation of the performance of his public duties. The Division concluded that appellant had forfeited all rights and benefits under the Florida Retirement System, and ordered appellant to refund to the Division retirement benefits paid.1 On appeal, appellant argues that the Division erred in ordering the forfeiture of his retirement because the facts as established below do not demonstrate, as required by the statute, that he was convicted of a felony by which he realized or attempted to realize a gain or advantage for himself or some other person ``through the use or attempted use of the power, rights, privileges, debts, or position of his . . . political office or employment position.'' § 112.3173(2)(e)6. Appellant asserts that what he did was unrelated to his position as Sheriff of Baker County, that he was one of many suspects in a federal criminal investigation, and that his role in the conspiracy was no more or less than other individuals involved in the conspiracy. Simply stated, his contention is that his position as Sheriff had nothing to do with the conspiracy to obstruct justice. We disagree. Count Five of the indictment, to which appellant pled guilty, provided:
In the written plea agreement, appellant entered a plea of guilty to Count Five of the indictment and certified that the facts set forth in the attached Factual Basis, which was incorporated by reference, were true. The Factual Basis contains the following facts admitted and agreed to by appellant:
At the plea colloquy, appellant stated that he had read the ``WAYS AND MEANS'' and the ``OVERT ACTS'' sections of the charge, and had also read the ``INTRODUCTION'' portion of the count and admitted committing the acts set forth in the charge. Appellant admitted that he was pleading guilty because he was guilty, and that he agreed to the facts as set forth in the Factual Basis. Appellant agreed that his purpose was to try to keep Harrell from cooperating with law enforcement so that they would not get to him. He was trying to keep Harrell from communicating what he knew about appellant's participation in the underlying marijuana conspiracy to law enforcement. Appellant admitted that he came to a mutual understanding with others to try to obstruct the federal grand jury investigation of illegal drug activities in Baker County. Section 893.09(1), Florida Statutes (1991), a provision in the Florida Comprehensive Drug Abuse Prevention and Control Act which was referred to in Count V of the federal indictment, provides:
As the Sheriff of Baker County, appellant had a statutory duty to cooperate with the enforcement of laws relating to cannabis. Instead, as indicated in the facts set forth in Count V of the federal indictment, appellant provided information to drug traffickers regarding confidential law enforcement efforts, and counseled and encouraged other individuals to misrepresent facts and provide false statements to law enforcement officers. When Harrell was arrested, appellant was involved in delivery of $8,000 for Harrell's attorney's fees. Appellant testified at the plea colloquy that his reason for doing so was to keep Harrell from informing investigators about appellant's participation in the underlying marijuana conspiracy. Contrary to Newmans' arguments on appeal, the acts committed by him in furtherance of the offense of which he was convicted, conspiracy to obstruct justice, were inseparably intertwined with his position as Sheriff. By providing information or ``tip-offs'' to drug traffickers regarding confidential investigations, aircraft flyovers, and other law enforcement efforts to investigate drug trafficking in Baker County, Newmans obtained or attempted to obtain the continuation of the unlawful enterprise or its profits, or both, and freedom from detection for himself and others, ``through the use . . . of the power, rights, privileges, duties, or position'' of the office of Sheriff. It cannot be seriously argued, we believe, given the facts admitted by Newmans in his federal court plea, that Newmans did not as Sheriff acquire knowledge of on-going law enforcement activities, nor that he did not in fact use his favorable position as Sheriff and the confidential information to which he was privy by virtue of that position to perform acts and to counsel and encourage others to misrepresent and conceal facts relating to the drug trafficking scheme in which he was involved. We therefore agree with the Division's finding that the statutory criteria for forfeiture has been satisfied. One further matter deserves brief mention. Prior to oral argument appellant filed his motion for leave to file a supplemental brief in which he raised the additional argument that the offense of which he was convicted does not constitute a felony under Florida law, contending also that this presented fundamental error cognizable by this Court notwithstanding the failure to raise the issue below or in his initial brief. We provisionally granted the motion for purposes of argument and allowed the Division to file a post-argument brief in response. After consideration of the motion and the Division's response, we conclude that the acts set forth in Count V of the federal indictment and in the factual basis to the plea agreement satisfy the elements of tampering with a witness or informant pursuant to section 914.22, Florida Statutes, not conspiracy to tamper with a witness as asserted by appellant. Tampering with a witness or informant is a third degree felony under Florida law, and a conviction of that offense in a Florida court would constitute grounds for forfeiture of retirement benefits under section 112.3173(2)(e)6., Florida Statutes. We therefore find it unnecessary to rule on the fundamental error question. The order on appeal is AFFIRMED. (KAHN and DAVIS, JJ., and SMITH, LARRY G., Senior Judge, CONCUR.) -- -- -- -- 1The Division also determined that appellant committed bribery. Appellant challenges this determination on appeal. Because the Division conceded error on this issue in the answer brief, and resolution of this issue is not necessary based on our resolution of the other issues raised, we decline to address appellant's argument regarding bribery.
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