STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
HECTOR LOPEZ, )
)
Petitioner, )
)
vs. ) CASE NO. 81-495RX
) FLORIDA PAROLE AND PROBATION ) COMMISSION, )
)
Respondent. )
)
FINAL ORDER
The Petitioner, Hector Lopez, has filed a "Petition for an Administrative Determination of the Validity of a Rule" of the Respondent, Florida Parole and Probation Commission. Petitioner is seeking an order declaring a portion of the Respondent's Rule 23-19.05, Florida Administrative Code, an invalid exercise of delegated legislative authority. By Order entered March 18, 1981, the Director of the Division of Administrative Hearings entered an order assigning this matter to the undersigned Hearing Officer. The final hearing was originally scheduled to be conducted on April 6, 1981, by notice dated March 19, 1981. The parties jointly requested a continuance, and the hearing was rescheduled and conducted on April 30, 1981. The parties entered into a stipulation, and the facts are not disputed.
Petitioner has submitted proposed findings of fact and conclusions of law. The proposed findings and conclusions have been adopted only to the extent that they are included in the following findings of fact and conclusions of law.
Otherwise, they have been rejected as contrary to the evidence or irrelevant to the issues.
FINDINGS OF FACT
The Petitioner was convicted of second degree murder, and is presently serving a sentence in the custody of the State of Florida on that conviction. He is currently incarcerated at Glades Correctional Institution in Belle Glade, Florida.
The Respondent is responsible for establishing "presumptive parole release dates" for prisoners such as the Petitioner. Petitioner was interviewed on July 19, 1979, for the purpose of setting his presumptive parole release date. By action dated August 8, 1979, the Respondent set the date at May 1, 1984. Petitioner requested a special review, but the Commission did not change its decision.
The Respondent has adopted guidelines for setting presumptive parole release dates by rule. Chapter 23-19, Florida Administrative Code. The rule originally became effective March 20, 1979. When first promulgated, the guidelines established a "matrix" which provided that second degree murder fell within the offense severity rating of "VI--Greatest Most Serious." A prisoner
convicted of second degree murder would have the presumptive release date computed according to the following matrix, which was set out at Rule 23-19.05, Florida Administrative Code:
18-39 months, if the inmate's salient factor score was 0.
38-59 months, if the inmate's salient factor score was 1.
58-79 months, if the inmate's salient factor score was between 2 and 6.
78-120 months, if the inmate's salient factor score was 7-11.
The salient factor score is a number computed by looking at past criminal behavior. The Respondent has amended its Rule 23-19.05, and increased the offense severity rating of second degree murder from VI to "VII--Greatest Most Serious II." Under the amended rule, an inmate convicted of second degree murder has the presumptive parole release date computed according to the following matrix:
60-84 months, if the inmate's salient factor score was 0.
83-107 months, if the inmate's salient factor score was
106-130 months, if the inmate's salient factor score was 2 to 6.
129-183 months, if the inmate's salient factor score was 7 to 11.
Petitioner's salient factor score was zero, and in accordance with the amended rule, his presumptive parole release date was set in the sixty to eighty-four month range, and specifically at the top of that range. The amendment to Rule 23-19.05 which changed the matrix time range for the offense of second degree murder is the subject of this rule challenge proceeding. Had the Petitioner's presumptive release date been computed according to the rule prior to the amendment, his presumptive parole release date would have been set in the eighteen to thirty-nine month range.
The amendment to Rule 23-19.05 became effective June 25, 1979. The Respondent prepared a document entitled "Economic Impact Statement" in support of the amendment. The statement provided:
The objective parole criteria rules to which this statement is attached, have
been promulgated in response to legislation which demanded the same. See Chapter
78-417, Laws of Florida. Therefore, the economic impact, if any, presently
flows from the statutes, not from the rules.
In its notice of the amended rule published in the "Florida Administrative Weekly," the Respondent stated that the estimate of economic impact on all affected persons of the amendment was "$0."
The instant rule challenge proceeding was initiated by a petition filed at the Division of Administrative Hearings on March 13, 1981.
In adopting the amendment to its Rule 23-19.05, the Respondent Commission relied upon the collective experience of its individual members.
This experience includes the Commissioners' experience in reviewing individual cases as well as each Commissioner's background. Neither the Commission nor its staff had any statistical data available. The Commission did not formally notify the Department of Corrections of the need for any statistical information, and it does not appear that the Department of Corrections provided any such data.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Section 120.56, Florida Statutes. The Respondent has contended that the petition is inadequate, and that this matters should therefore be dismissed. This contention is without merit. The petition complies with the requirements set out at Section 120.56, Florida Statutes.
Petitioner contends that the amendment to Rule 23-19.05 which increased the matrix time period for presumptive parole release dates of inmates convicted of second degree murder is an invalid exercise of delegated legislative authority because the amendment was not properly supported by research data or statistical information. This contention is without merit. Section 947.165, Florida Statutes, provides:
The commission shall develop and implement objective parole guidelines which shall be the criteria upon which parole decisions are made. Such guidelines shall be established by rule and promulgated pursuant to chapter 120 before January 1, 1979. The objective parole guidelines shall be developed according to an acceptable research method and shall be based on the seriousness of offense and the likelihood
of favorable parole outcome. Factors used in arriving at the salient factor score and the severity of offense behavior category shall not be applied as aggravating circumstances.
The commission shall review the objective parole guidelines before January 1, 1980, and make any revisions considered necessary by virtue of experience. Thereafter, such review and necessary revision shall be conducted no less than on an annual basis. The commission shall be responsible for
notifying the department of the statistical information and automated data requirements necessary for program review and
monitoring by the commission, and the department shall consider such a request on a priority basis in accordance with the provisions of Sec. 20.315(20).
The amended rule which is the subject of this proceeding is a revision to the objective parole guidelines as set out at paragraph (2) of the statute. The Commission determined, by virtue of the experience of its individual members, that the guidelines for the offense second degree murder should be revised.
They therefore did precisely what the statute requires. While the statute goes on to place upon the Commission the responsibility for notifying the Department
,of Corrections of its need for statistical information, the statute does not mandate that any particular statistical information would be required to support revisions to the objective parole guidelines.
The Petitioner has contended that the amended rule is arbitrary and capricious. The Petitioner has not satisfied its burden of proof with regard to this contention. Agrico Chemical Company v. Department of Environmental Regulation, 365 So.2d 759 (1 DCA Fla. 1978).
The Petitioner has contended that the amendment to the rule constitutes an unconstitutional ex post facto law. The determination of the constitutionality of a rule that has been enacted requires the exercise of judicial power which is vested only in the courts. A Hearing Officer of the Division of Administrative Hearings lacks authority to rule upon the constitutionality of an existing rule. Department of Environmental Regulation
v. Leon County, 344 So.2d 297, 298 (1 DCA Fla. 1977). Accordingly, Petitioner's contentions regarding the constitutionality of the amended rule cannot be resolved at this stage of this proceeding.
Petitioner has contended that the amended rule constitutes an invalid exercise of delegated legislative authority because it was not supported by the required economic impact statement. Section 120.54(2)(a), Florida Statutes. Section 120.54(2)(c) provides:
Failure to provide an adequate statement of economic impact is grounds for holding the rule invalid; however, beginning October 1, 1978, no rule shall be declared invalid for want of an adequate statement of economic impact unless the issue is raised in an administrative or judicial proceeding within 1 year of the effective
date of the rule to which the statement applies.
More than one year elapsed between the effective date of the amended rule which is the subject of this proceeding and the filing of the petition. Petitioner contends that the economic impact statement filed by the Respondent is so inadequate and inaccurate that it cannot be considered an economic impact statement at all. The Petitioner contends that while a rule can be challenged on account of an Inadequate economic impact statement only within one year of its effective date, failure to provide any statement at all can be raised as an issue at any time. This contention is not supported by the language of the statute. Failure to file an economic impact statement in support of a proposed rule would certainly constitute failure to provide an adequate statement of economic impact as provided by statute. The statute does not differentiate between inartful or erroneous economic impact statements and the total absence of such statements. Petitioner's contention that the subject rule is invalid because of the failure of an adequate economic impact statement must therefore be rejected because it was not timely raised.
FINAL ORDER
Based upon the foregoing findings of fact and conclusions of law, it is, hereby,
The Petitioner has failed to establish that the Parole and Probation Commission's Rule 23-19.05, Florida Administrative Code, constitutes an invalid exercise of delegated legislative authority, and the Petition for an Administrative Determination of the Validity of a Rule is accordingly dismissed.
DONE AND ORDERED this 9th day of June, 1981, in Tallahassee, Florida.
G. STEVEN PFEIFFER Assistant Director
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 9th day of June, 1981.
COPIES FURNISHED:
Steven H. Malone, Esquire Patterson & Traynham
Post Office Box 4289 Tallahassee, Florida 32303
Malcolm S. Greenfield, Esquire General Counsel
Florida Parole and Probation Commission
1309 Winewood Boulevard, Bldg. 6
Tallahassee, Florida 32301
Carroll Webb, Esquire Executive Director
Administrative Procedures Committee Room 120, Holland Building Tallahassee, Florida 32301
Ms. Liz Cloud, Chief
Bureau of Administrative Code Department of State
1802 The Capitol
Tallahassee, Florida 32301
| Issue Date | Proceedings |
|---|---|
| Jun. 09, 1981 | CASE CLOSED. Final Order sent out. |
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 09, 1981 | DOAH Final Order | Petitioner didn't establish rule dealing with presumptive release dates was invalid exercise of delegated legislative authority. |
