91-005183RX Roger Smith vs. Probation And Parole Services Status: Closed DOAH Final Order on Monday, October 21, 1991.

Summary: Failed to prove rule vacating presumptive or effective parole release date of inmate was invalid.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROGER SMITH, )

)

Petitioner, )

)

vs. ) CASE NO. 91- 5183RX

)

FLORIDA PAROLE COMMISSION, )

)

Respondent. )

___________________________________)

FINAL ORDER

Pursuant to an Order of Assignment dated August 20, 1991, this case was

assigned to Larry J. Sartin, a duly designated Hearing Officer of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Roger Smith, pro se

#081849

New River West Correctional

Institution

Post Office Box 333

Raiford, Florida 32083-0333

For Respondent: Kurt E. Ahrendt

Assistant General Counsel

Florida Parole Commission

Building 6

1309 Winewood Boulevard

Tallahassee, Florida 32399-2450

STATEMENT OF THE ISSUES

Whether Rule 23-21.018(1) and (7), Florida Administrative Code, constitutes

an invalid exercise of delegated authority?

PRELIMINARY STATEMENT

On August 12, 1991, the Petitioner, Roger Smith, filed a document titled

"Initial Complaint." Pursuant to this document, the Petitioner challenged Rule

23-21.18 (1) and (7), Florida Administrative Code (hereinafter referred to as

the "Challenged Rule"), pursuant to Section 120.56(4), Florida Statutes. The

Petitioner alleged that the Challenged Rule was an invalid exercise of delegated

authority. In particular, the Petitioner alleged that the Challenged Rule is an

invalid exercise of delegated authority as defined in Section 120.52(8)(c),

Florida Statutes.

On August 21, 1991, an Order to Show Cause was entered. The parties were

informed in the Order to Show Cause that there did not appear to be any dispute

over the pertinent facts in this case. Therefore, it was indicated that the

case would be disposed of without a formal hearing by assuming that the

allegations of fact contained in the Initial Complaint were true, and allowing

the parties an opportunity to file proposed final orders setting out the

relevant undisputed facts and arguing the relevant law. The parties were given

until August 30, 1991, to show cause why a formal hearing should be held.

On August 30, 1991, the Respondent filed a Response to Order to Show Cause

and Motion to Dismiss. The Respondent indicated that it had no objection to the

resolution of this matter in the manner set out in the Order to Show Cause. The

Petitioner filed no response to the Order to Show Cause.

In the Motion to Dismiss the Respondent argued that the Petitioner lacked

standing to institute this rule challenge and requested that the Initial

Complaint be dismissed. On September 16, 1991, an Order Denying Motion to

Dismiss and Establishing Dates for Filing Proposed Final Orders was issued. The

Respondent's Motion to Dismiss was denied and the parties were informed that

proposed final orders were to be filed on or before September 30, 1991, and that

this Final Order would be issued on or before October 21, 1991.

On September 30, 1991, the parties both filed proposed final orders. The

Respondent's proposed final order contained proposed findings of fact. A ruling

on each proposed finding of fact has been made either directly or indirectly in

this Final Order or the proposed finding of fact has been accepted or rejected

in the Appendix which is attached hereto. The Petitioner did not propose any

findings of fact.

FINDINGS OF FACT

A. Standing.

1. The Petitioner, Roger Smith, is an inmate in the custody of the

Department of Corrections.

2. The Petitioner is subject to the rules of the Respondent, the Florida

Parole Commission, including the Challenged Rule.

3. The Petitioner is serving a "parole eligible sentence."

4. The Petitioner's eligibility for parole has been determined by the

Respondent.

5. The Petitioner was convicted of the offense of escape and, therefore,

the Respondent applied the Challenged Rule to the Petitioner.

B. The Respondent.

6. Sections 947.07 and 947.13, Florida Statutes, authorize the Respondent

to adopt rules governing the parole of inmates in the State of Florida.

7. Among other things, Section 947.13, Florida Statutes, authorizes the

Respondent to determine who is placed on parole and to fix the time and

conditions of parole.

8. Pursuant to Sections 947.07 and 947.13, Florida Statutes, the

Respondent promulgated the Challenged Rules.

C. Rule 23-21.018(1) and (7), Florida Administrative Code.

9. Rule 23-21.018(1) and (7), Florida Administrative Code, provides the

following:

(1) Vacation of presumptive or effective

parole release date: The exiting of an inmate

from the incarceration portion of his sentence,

which shall include but not be limited to bond,

escape, parole or MCR release, expiration of

sentence, or transfer to a mental health

facility, shall vacate any established

presumptive parole release date. Any

subsequent return to incarcerations will

require an initial interview to establish a

presumptive parole release date. Provided,

however, inmates returning to court for

modification of a previously imposed sentence

or as witnesses shall not have their

presumptive parole release dates vacated.

Inmates returning to courts outside of

Florida's jurisdiction, i.e, Federal or other

state, shall not have their presumptive parole

release dates vacated. However, information

resulting from disposition of cases in court

may be used as new information in accordance

with applicable law and these rules. Inmates

transferred to a Mentally Disordered Sexual

Offender Program shall not have their

presumptive parole release dates vacated.

. . . .

(7) Conviction for crimes committed while

incarcerated: Escape or any other crime

committed during incarceration with an ensuing

conviction and sentence vacates any previously

established presumptive parole release date

and shall cause the inmate to be considered a

new admission. If the inmate is found to be

eligible for consideration for parole, the

Commission shall aggregate.

CONCLUSIONS OF LAW

A. Jurisdiction.

10. The Division of Administrative Hearings has jurisdiction of the

parties to and the subject matter of this proceeding. Section 120.56, Florida

Statutes (1989).

B. Standing.

11. The Petitioner has standing to institute the instant action. He is

subject to the rules of the Respondent, including the Challenged Rule and the

Respondent has applied the Challenged Rule to the Petitioner. See Department of

Corrections v. Sumner, 447 So.2d 1388 (Fla. 1st DCA 1984).

C. Nature of the Petitioner's Challenge.

12. The only appropriate challenge to an existing rule which may be

brought before the Division of Administrative Hearings is a challenge pursuant

to Section 120.56, Florida Statutes. The only relief which may be sought

pursuant to Section 120.56, Florida Statutes, is a determination of the

invalidity of the rule on the ground that the rule is an "invalid exercise of

delegated authority."

13. What constitutes an "invalid exercise of delegated authority" is

defined in Section 120.52(8), Florida Statutes, as follows:

(8) "Invalid exercise of delegated

authority" means action which goes beyond the

powers, functions, and duties delegated by

the Legislature. A proposed or existing rule

is an invalid exercise of delegated

legislative authority if any one or more of

the following apply:

(a) The agency has materially failed to

follow the applicable rulemaking procedures

set forth in s. 120.54;

(b) The agency has exceeded its grant of

rulemaking authority, citation to which is

required by s. 120.54(7);

(c) The rule enlarges, modifies, or

contravenes the specific provisions of law

implemented, citation to which is required by

s. 120.54(7);

(d) The rule is vague, fails to establish

adequate standards for agency decisions, or

vest unbridled discretion in the agency; or

(e) The rule is arbitrary or capricious.

14. In order to challenge an existing rule, the person bringing the

challenge must state with particularity which portion(s) of the above definition

the challenged rule violates and the facts supporting such an allegation.

15. In this case, the Petitioner has alleged that the Challenged Rule

constitutes an "invalid exercise of delegated authority" in violation of Section

120.52(8)(c), Florida Statutes, because the Challenged Rule "enlarges, modifies,

or contravenes the specific provisions of law implemented . . . ."

D. Burden of Proof.

16. The burden of proof in this proceeding was on the Petitioner. Florida

League of Cities, Inc. v. Department of Insurance and Treasurer, 540 So.2d 850

(Fla. 1st DCA 1989); Department of Administration, Division of Retirement v.

Albanese, 455 So.2d 639 (Fla. 1st DCA 1984); and Agrico Chemical Company v.

Department of Environmental Regulation, 365 So.2d 759 (Fla. 2d DCA 1979).

E. The Validity of the Challenged Rule.

17. The Petitioner has alleged that the Challenged Rule is invalid

pursuant to Sections 120.52(8)(c), Florida Statutes, because the Rule "enlarges,

modifies, or contravenes the specific provisions of law implemented . . . ."

18. Chapter 947, Florida Statutes, is titled the "Objective Parole

Guidelines Act of 1978." Section 947.001, Florida Statutes. Pursuant to

Section 947.002(1), the Legislature has declared, in part, the following intent

in enacting Chapter 947:

(1) The present system lacks objective

criteria for paroling and, thus, is subject

to allegations of arbitrary and capricious

release and, therefore, potential abuses. It

is the intent of this act to establish an

objective means for determining and

establishing parole dates for inmates.

19. Pursuant to Section 947.13, Florida Statutes, the Respondent is given

the authority and duty, among other things, to determine who is to be placed on

parole and to fix the time and conditions of parole "as provided in this

chapter."

20. Section 947.168, Florida Statutes, provides that persons serving a

parole-eligible sentence must be considered for parole. Section 947.172,

Florida Statutes, requires that a "presumptive parole release date" be

established by the Respondent for persons eligible for parole. Section

947.172(3), Florida Statutes, provides that the "presumptive parole release date

shall become binding on the commission when agreement on the presumptive parole

release date is reached."

21. A "presumptive parole release date" is defined in Section 947.005(4),

Florida Statutes, as "the tentative parole release date as determined by

objective parole guidelines."

22. Finally, Section 947.16(5), Florida Statutes, provides the following:

(5) Within 90 days after any interview for

parole, the inmate shall be advised of the

presumptive parole release date. Subsequent

to the establishment of the presumptive parole

release date, the commission may, at its

discretion, review the official record or

conduct additional interviews with the inmate.

However, the presumptive parole release date

may not be changed except for reasons of

institutional conduct or the acquisition of

new information not available at the time of

the initial interview.

23. Based upon the foregoing provisions of Chapter 947, Florida Statutes,

the Petitioner has argued that, although the Respondent may "change" a

presumptive parole release date once it is established, it may not "vacate" a

presumptive parole release date as the Respondent has provided in the Challenged

Rule. In further support of this argument, the Petitioner has cited Section

947.173(3), Florida Statutes, which provides:

(3) The commission may affirm or modify

the authorized presumptive parole release

date. However, in the event of a decision to

modify the presumptive parole release date,

in no case shall this modified date be after

the date established under the procedures of

s. 947.172. It is the intent of this

legislation that, once set, presumptive parole

release dates be modified only for good cause

in exceptional circumstances.

See also Section 947.174, Florida Statutes.

24. The Petitioner's argument is without merit. Chapter 947, Florida

Statutes, does not contemplate that a presumptive parole release date, once

established, must exist in perpetuity. Even the Petitioner recognizes this

fact. The Petitioner, however, has argued for too strict an interpretation of

the terms "change" and "modify."

25. The Petitioner has failed to recognize that Section 947.16, Florida

Statutes, in establishing the criteria for determining an inmates eligibility

for parole, provides that only persons who are "confined in execution of the

judgment of the court, and whose record during confinement or while under

supervision is good . . . " are eligible for parole consideration. Any inmate

that escapes is no longer "confined in execution of the judgment of the court .

. . ." Therefore, if an inmate escapes from confinement, the inmate loses his

or her eligibility to be considered for parole. The Respondent's provision for

the vacating of an inmate's presumptive parole release date under the Challenged

Rule if the inmate escapes is consistent with Chapter 947, Florida Statutes.

See May v. Florida Parole and Probation Commission, 435 So.2d 834 (Fla. 1983);

and Williams v. Florida Parole and Probation Commission, 515 So.2d 1044 (Fla.

1st DCA 1987).

26. Additionally, an inmate convicted of escape must have a new

presumptive parole release date established pursuant to Chapter 947, Florida

Statutes. In establishing the new presumptive parole release date all offenses

for which the inmate is serving must be aggregated. See Section 947.165,

Florida Statutes. Regardless of whether the original presumptive parole release

date is said to have been "vacated", "modified" or "changed", the Respondent is

required under Chapter 947, Florida Statutes, to consider an inmate's original

sentence and any subsequent sentence for the offense of escape. To conclude

that the Respondent's use of the word "vacate" in the process of considering how

an inmate's presumptive parole release date should be effected by an escape is

improper would be to place form over substance.

27. Based upon the foregoing, it is concluded that the Petitioner failed

to prove that Rule 23-21.018(1) or (7), Florida Administrative Code, "enlarges,

modifies, or contravenes the specific provisions of law implemented . . . ."

Therefore, Rule 23-21.018(1) and (7), Florida Administrative Code, does not

constitute an invalid exercise of delegated authority pursuant to Section

120.52(8)(c), Florida Statutes, in violation of Section 120.56, Florida

Statutes.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

ORDERED that the Petitioner has failed to prove that Rule 23-21.018(1) and

(7), Florida Administrative Code, is an invalid exercise of delegated authority

in violation of Section 120.56, Florida Statutes, and the Petitioner's Initial

Complaint is DISMISSED.

DONE and ENTERED this 21st day of October, 1991, in Tallahassee, Florida.

___________________________________

LARRY J. SARTIN

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the

Division of Administrative Hearings

this 21st day of October, 1991.

APPENDIX TO FINAL ORDER

The Respondent has submitted proposed findings of fact. It has been noted

below which proposed findings of fact have been generally accepted and the

paragraph number(s) in the Final Order where they have been accepted, if any.

Those proposed findings of fact which have been rejected and the reason for

their rejection have also been noted.

The Respondent's Proposed Findings of Fact

Proposed Finding Paragraph Number in Final Order

of Fact Number of Acceptance or Reason for Rejection

1 1.

2 Not relevant to this proceeding except to the extent

that it supports a finding that the Petitioner has been incarcerated for a

parole eligible offense. See 3.

3 See 2-5.

4 Hereby accepted.

5-6 See 5.

7-10 Not relevant to this proceeding. The action before the

circuit court was not a rule challenge pursuant to Section 120.56, Florida

Statutes.

COPIES FURNISHED:

Roger Smith

#081849

New River West Correctional Institution

Post Office Box 333

Raiford, Florida 32083-0333

Kurt E. Ahrendt

Assistant General Counsel

Parole and Probation Commission

Building 6

1309 Winewood Boulevard

Tallahassee, Florida 32399-2450

Donna Malphurs

Suite 439

Department of Corrections

2601 Blairstone Road

Tallahassee, Florida 32399-2500

Carroll Webb, Executive Director

Administrative Procedures Committee

Holland Building, Room 120

Tallahassee, Florida 32399-1300

William L. Camper

Parole and Probation Commission

General Counsel

1309 Winewood Bouelvard

Building 6, Room 338

Tallahassee, Florida 32399-2450

A. M. Tony Fontana

Parole and Probation Commission

Commission Chairman

1309 Winewood Boulevard

Tallahassee, Flordia 32399-2450

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED

ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT

WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT

WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL

ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS

TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE

FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.