STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DENNIS R. COOKISH, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1620RX

) FLORIDA PAROLE AND PROBATION ) COMMISSION, )

)

Respondent. )

)

FINAL ORDER

A hearing was held in the above captioned matter, after due notice, at Immokalee, Florida, on August 5, 1981, before Thomas C. Oldham, Hearing Officer.

APPEARANCES

For Petitioner: Dennis R. Cookish

Post Office Box 221 Raiford, Florida 32083

For Respondent: Catherine L. Dickson, Esquire

Assistant General Counsel

Florida Parole and Probation Commission 1309 Winewood Boulevard - Bldg. 6

Tallahassee, Florida 32301 ISSUE PRESENTED

Administrative determination of validity of Rule 23- 19.01(5), Florida Administrative Code, pursuant to Section 120.56, Florida Statutes.

By petition filed June 17, 1981, Petitioner challenges Respondent's Rule 23-19.01(5), F.A.C., as an invalid exercise of delegated legislative authority, pursuant to Section 120.56, Florida Statutes. The petition alleges that the rule which permits Respondent to consider multiple offenses for which an inmate is serving a concurrent sentence to be used as aggravating factors in establishing a parole date, is arbitrary and exceeds Respondent's authority delegated under Chapter 947, Florida Statutes. The petition further alleges that the rule is unconstitutional and that it violates rights of due process, constitutes double jeopardy, and is an ex-post facto application of statutory provisions and administrative regulations.

The hearing herein was originally scheduled for July 20, 1981, but was continued to August 5 on motion of Petitioner. At the hearing, Petitioner presented the testimony of four witnesses and testified himself. One witness testified for Respondent. The parties stipulated to the introduction in evidence of a Stipulation of Facts (Exhibit l) , deposition of Stephen Seliger

(Exhibit 2) and deposition of David Mack (Exhibit 3). Eighteen additional exhibits were received in evidence

The parties orally stipulated that the constitutional issues raised by Petitioner would not be litigated at the proceeding, but preserved for any future judicial determination, and that the sole issue to be determined was whether the rule in question constituted an arbitrary, capricious, or otherwise invalid exercise of delegated legislative authority.

At the conclusion of the hearing, the parties agreed that the final order herein would be issued within thirty (30) days after filing of the hearing transcript. Subsequently, the parties agreed to extend the time to November 16, 1981.

The brief of Petitioner and proposed recommended order filed by the Respondent have been fully considered, and those portions not adopted herein are considered to be either unnecessary, irrelevant, or unsupported in law or fact, and are specifically rejected.

FINDINGS OF FACT

The parties stipulated to the following facts:

1. The Petitioner, Dennis R. Cookish, is an inmate currently incarcerated at Hendry Correctional Institution, Route 2, Box 13-A, Immokalee, Florida 33934. His inmate number is 073819.

   
   

2. The Respondent, Florida Parole and Probation Commission, is located at 1309 Winewood Boulevard, Bldg. 6, Tallahassee, Florida 32301. The Respondent is responsible for establishing presumptive parole release dates for all prisoners in the custody of the State of Florida who meet the requirements of 947.16, Florida Statutes. Petitioner met all of the requirements of 947.16, Florida Statutes, and was entitled to a PPRD initial interview on March 4, 1981.

   
   

3. Petitioner was interviewed March 4, 1981, for the purpose of setting his PPRD. By action of the Respondent on March 25, 1981, Petitioner's presumptive parole release date was established. That date was set at November 27, 1984.

   
   

4. Petitioner did not request administrative review of his presumptive parole release date pursuant to 947.173, Florida Statutes.

   
   

5. The Respondent Commission is required under Section 947.16 and 947.172, Florida Statutes, to provide Petitioner with a presumptive parole release date. Respondent Commission is required to compute the presumptive parole release date according to Objective Parole Guidelines, under Section 947.165, Florida Statutes, (1979).

   
   

6. Respondent Commission may use aggravating or mitigating circumstances in determining the presumptive parole release date but they must not be duplicative of the severity of offense behavior or the salient factor score pursuant to Sections 947.165(1), 947.172(2), Florida Statutes, (1979).

   
   

7. The Commission was delegated rule making power via Section 947.07, Florida Statutes (1979).

8. The Respondent Commission developed parole guidelines which became effective March 20, 1979. The guidelines are contained in Rule 23-19, Florida Administrative Code. The aggravation which is the subject of the instant challenge is contained in Rule 23-19.01(5), Florida Administrative Code.

   
   

9. The Petitioner was convicted of grand theft after trust on February 26, 1980, of a second count of grand theft after trust on February 29, 1980, of uttering a forged instrument on January 22, 1980, of criminal attempt (attempted robbery) on April 14, 1980, and of uttering a forged instrument on June 16, 1980; and sentenced to concurrent terms of 3 years, 3 years, 2 years, 5 years, and 3 years, respectively, and followed by 2 years probation.

   
   

10. The depositions of David Mack and Steve Seliger are stipulated and entered into evidence as their testimony in this proceeding.

    
    

    The following findings are made from the evidence presented at the hearing:

    
    

11. As a result of passage of the "Objective Parole Guidelines Act of 1978," Respondent was required to develop objective parole criteria pursuant to the Act by January 1, 1979. The Florida Research Center was hired under a Federal grant to devise such criteria. The purpose of the project was to fulfill the legislative purpose of developing objective parole guidelines under acceptable research methods to be based on the seriousness of the offense and the likelihood of favorable parole outcome. The Florida Research Center developed the required data and methods after studying the procedures followed in other states, current release data, scaling techniques, and the like. Respondent Parole and Probation Commission and its staff contributed extensively to the study.

    
    

12. As devised, the rules promulgated as Chapter 23-19, Florida Administrative Code, provide a method of arriving at a "salient factor" score which serves as an actuarial parole prognosis aid. It is derived by considering such matters as prior convictions and incarcerations, total time served, age at first commitment and prior parole revocations or escapes.

    
    

13. The other major facet in determining a presumptive parole release date is an "offense severity rating" which reflects the present offense of which the inmate was convicted. Offenses are characterized according to the type of offense in nine categories ranging from "Low" to "Greatest (Most Serious IV)". Each category reflects four "matrix time frames" which are the minimum and maximum number of months to be served before parole. The particular time frame for a particular offense is based on the offender's salient factor score and represents parole prognosis. (Testimony of Farris, Exhibit 20)

    
    

14. Respondent's Rule 23-19.01(5), F.A.C., provides that if the present offense of conviction involves multiple separate offenses, the severity level shall be based on the most serious of the offenses, and the other offenses may be used as aggravating factors to be applied to both consecutive and concurrent sentences. Respondent's purpose in permitting multiple offenses to be used as aggravating factors to increase the parole matrix time frame was to recognize the proposition that there is a relationship between the numbers and types of criminal behavior which affects parole prognosis. Respondent's Rule 23-19.03, F.A.C., provides other examples of situations in which the parole decision may be either above or below the matrix time frame based upon aggravating and mitigating circumstances.

15. In determining whether to consider multiple offenses as aggravating factors, Respondent's hearing examiners review the inmate's complete file, including presentence reports, the circumstances of the offenses, psychological reports, and his prior record to determine whether such offenses should be a basis for adding additional months to the matrix time frame when arriving at a presumptive parole release date. Each such case is considered on its individual circumstances to arrive at a subjective determination of parole risk. Aggravating factors are probably not applied in 25 to 40 percent of the cases. These normally involve first offenders with multiple offenses arising out of the same incident or which occurred close in time. In the opinion of experts at Respondent's hearing examiner and field and supervisory levels, Rule 23- 19.01(5), F.A.C., relating to aggravating factors is reasonably related to the question of parole prognosis. (Testimony of L'Hommedieu, Farris, Exhibits 9, 20)

    
    

16. The Respondent's hearing examiners who interviewed Petitioner Cookish on March 4, 1981, to arrive at his preliminary presumptive parole release date, computed a salient factor score of 5 based on prior convictions and incarcerations, total time served in years, and age at first commitment. Utilizing the conviction for criminal attempt (attempted robbery) as the most serious of the offenses for which the Petitioner was serving a concurrent sentence, they arrived at an offense characteristic of Moderate which provided for a matrix time range of 14 to 19 months. They then considered three of four other offenses for which he had been sentenced concurrently and applied the maximum number of months according to the type of offense as aggravating circumstances for each offense for a total of 51 months. This period was added to the maximum matrix time range of 19 months for a total of 70 months to be served prior to parole. Petitioner's incarceration commenced on January 31, 1979. By adding 70 months to that commencement date, the examiners recommended a presumptive parole release date of November 27, 1984. The Respondent adopted as its own the examiners' presumptive parole release date at a commission meeting on March 25, 1981. (Testimony of Petitioner, Exhibits 4-8, 10-11)

    
    

17. Kenneth Whittington is an inmate at the Hendry Correctional Institution who received a recommended presumptive parole release date of January 4, 1983, after being interviewed by one of Respondent's hearing examiner panels. The date was based on a salient factor score of 10 which included one point for a prior parole revocation, and an offense characteristic of Moderate based on a conviction of burglary of a dwelling which placed him in the 18-33 month matrix time range. The total time recommended to be served was 33 months. He was not serving a concurrent or consecutive sentence. (Testimony of Whittington, Exhibits 12-14)

    
    

18. Jimmy Lee Clark is an inmate at the Hendry Correctional Institution. He is serving three concurrent sentences for battery of a law enforcement officer, resisting arrest with violence, aggravated assault, and aggravated battery. He was on parole in 1977 for possession of heroin, but parole was revoked. He was on probation for aggravated battery in 1979 which was also revoked and he was thereafter sentenced. He was interviewed by Respondent's hearing examiner panel in March, 1981 to determine a presumptive parole release date. On March 24, 1981, Respondent commission concurred with the hearing examiner panel's recommendations and set his presumptive release date at September 11, 1984. The offenses for which he was concurrently sentenced were not used as aggravating factors in arriving at the presumptive date. The sentence which he is currently serving was imposed in August 1980 for a period of five years. (Testimony of Clark, Exhibits 15-18),

19. Stewart Strickland is an inmate at the Hendry Correctional Institution currently serving a total of 8 years confinement on 6 concurrent and 2 consecutive sentences. He has had about 33 prior arrests primarily for check offenses and has spent approximately 6 years in prison. He was 18 years old at the commission of his first offense. His current convictions involve worthless check offenses and grand theft. One of his prior offenses was a federal charge involving violation of the Gun Control Act. He has had probation revoked several times in the past. He was once on parole but did not complete the same because of conviction on a bad check charge.

    
    

20. He was interviewed by Respondent's hearing examiner panel in March 1980 to establish a presumptive parole release date. He received a salient factor score of 7 based on prior convictions, total time served, prior incarcerations, and age at first commitment. His offense characteristic was deemed Moderate for the offense of grand theft which placed him in a matrix time frame of 18 to 33 months confinement. Four of his 7 remaining concurrent offenses were used as aggravating circumstances totalling 72 months which, added to the 33 months maximum of the matrix time range, resulted in 105 months as the total time recommended by the examiner. His presumptive parole release date was established as July 18, 1987. (Testimony of Strickland, Exhibit l9)

    
    

    CONCLUSIONS OF LAW

    
    

21. Petitioner challenges Respondent's Rule 23-19.01(5) Florida Administrative Code, under Section 120.56, Florida Statutes, on constitutional grounds and as exceeding Respondent Florida Parole and Probation Commission's authority "to change the Petitioner's judicially imposed concurrent sentence into a consecutive one as is the Commission's arbitrary policy." Petitioner's constitutional arguments must be reserved for any future judicial determination of their validity.

    
    

22. No issue has been raised as to Petitioner's standing to bring this proceeding. It is apparent that his substantial interests are affected by the challenged rule in that it has been applied in determining his presumptive parole release date and thereby affects future parole decisions in his case. A prisoner is entitled to seek Section 120.56, F.S. proceedings. Comer v. Florida Parole and Probation Commission, 388 So.2d 1341 (Fla. 1st DCA 1980).

    
    

23. Section 947.002, Florida Statutes, expresses the legislative intent as to the purpose of the "Objective Parole Guidelines Act of 1978" in the following terms:

    
    

    1. Intent.--

       1. The present system lacks objective criteria for paroling and, thus, is subject to allegations of arbitrary and capricious relief and, therefore, potential abuses.

          It is the intent of this act to establish an objective means for determining and establishing parole dates for inmates.

       2. Objective parole criteria will be designed to give primary weight to the seriousness of the offender's present criminal offense and his past criminal

    record. In considering the risk of recidivism, practice has shown that the best predictor is prior record.

24. Section 947.165 provides for the development and implementation of objective parole guidelines as follows:

    
    

    947.165 Objective parole guidelines.--

    1. The commission shall develop and implement objective parole guidelines which will 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 serious- ness 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 aggra- vating circumstances. (Emphasis added)

    
    

25. Chapter 947, F.S., provides generally that inmates are entitled to an initial interview conducted by Respondent's hearing examiner panel at specified times for the purpose of arriving at a recommendation as to the inmate's presumptive parole release date. Subsection 947.172 (2) requires such date to be based on the objective parole guidelines and "any other competent evidence relevant to aggravating and mitigating circumstances." If a presumptive parole release date falls outside the Objective Parole Guidelines, the reason for the decision must be stated in writing with individual particularities. A commission panel acts on the recommendation of the hearing examiner panel to establish the presumptive date and an inmate may request review of the same. Subsequent hearings are required at stated intervals for the establishment of an "effective parole release date" which is the actual parole release date as determined by the presumptive parole release date, satisfactory institutional conduct, and an acceptable parole plan.

    
    

26. Respondent has implemented the foregoing statutory provisions by the promulgation of Chapters 23-16 and 23-19, Florida Administrative Code. As heretofore found, the Objective Parole Guidelines consist of salient factors scoring and offense characteristics to establish the matrix time frame for parole. Further, specified aggravating and mitigating factors are shown in Rule 23-19.03 which may warrant a decision which would fix the presumptive parole release date above or below the matrix time frame. Additionally, Respondent promulgated the rule under challenge as follows:

    
    

    23-19.01 Offense Severity Rating.

    (5) If present offense of conviction involved multiple separate offenses, the severity level shall be based on the most serious of the offenses, and the other offenses may be used as aggravating factors. This shall be applied to both consecutive and concurrent sentences. (Emphasis added)

    
    

27. Petitioner does not challenge Respondent's Objective Parole Guidelines as developed pursuant to the requirements of subsection 947.165(1), F.S. Nor does he contend that the challenged rule violates the proscription of that provision against the application of factors used in arriving at the salient factor score and the severity of offense behavior category as aggravating circumstances. For the purpose of this proceeding, his basic claim concerns

    Respondent's authority to extend a parole release date by use of concurrent offenses as aggravating factors.

    
    

28. The validity of regulations normally will be sustained so long as they are reasonably related to the purpose of the enabling legislation and are not arbitrary or capricious. Florida Beverage Corporation v. Wynne, 306 So.2d 200 Fla. 1st DCA 1975), Agrico Chemical Company v. Department of Environmental Regulation, 365 So.2d 759 (Fla. 1st DCA 1978), Jax Liquors Inc. v. Division of Alcoholic Beverages and Tobacco et al., 388 So.2d 1306 (.Fla. 1st DCA 1980), Eli Witt v. Department of Business Regulation, 388 So.2d 1340 (Fla. 1st DCA 1980). In Agrico, the Court stated:

A capricious action is one which is taken without thought or irrationally. An arbi- trary decision is one not supported by facts or logic, or despotic .

The requirement that a challenger has the burden of demonstrating agency action to be arbitrary or capricious is a stringent one indeed . .

Here, Petitioner has not succeeded in meeting his "stringent" burden. The evidence adduced at the hearing shows that Respondent's Rule 23-19.01(5), F.A.C., is a reasonable and logical interpretation of the legislative intent and statutory direction in establishing presumptive parole release dates. The particular rule in question is in consonance with subsection 947.172(2), F.S., which provides that the recommendation of the hearing examiner panel as to a presumptive parole release date is to be based on the objective parole guidelines and "any other competent evidence relevant to aggravating and mitigating circumstances." It is not unreasonable to conclude that a prisoner who is incarcerated for several offenses need not be considered for parole purposes similarly to one who has committed only one offense of the same type.

It is true that application of the rule in a case such as that of Petitioner who is serving several concurrent sentences can and has substantially extended his proposed parole release date. However, the evidence establishes that decisions of this nature are based on the exercise of judgment by both the hearing examiner panel and the Respondent commission after consideration of a variety of factors. This discretionary function is not deemed to be "arbitrary" because, as reflected by the evidence, the decision is made on an individual case basis depending upon the particular facts. If multiple offenses were applied routinely as aggravating factors to the same degree in both consecutive and concurrent sentence cases, an element of unfairness could be found. However, such a result is apparently not in keeping with the manner in which inmate records are reviewed by Respondent. In any event, such a practice would not go to the validity of the rule, but merely to its case by case application. It might be advisable for Respondent to prescribe further refinements as to any differing criteria in applying the rule to consecutive and concurrent sentences, but that is a question for future possible rulemaking.

It is therefore determined that Petitioner has failed to establish that Respondent's Rule 23-19.01(5), Florida Administrative Code, is an invalid exercise of delegated legislative authority.

DONE and ORDERED this 6th day of November, 1981, in Tallahassee, Florida.

THOMAS C. OLDHAM

Hearing Officer

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 6th day of November,1981.

COPIES FURNISHED:

Dennis R. Cookish Post Office Box 221

Raiford, Florida 32083

Catherine L. Dickson, Esquire Assistant General Counsel Florida Parole and Probation

Commission

1309 Winewood Boulevard - Bldg 6

Tallahassee, Florida 32301

Carroll Webb, Executive Director Administrative Procedures Committee Room 4 Holland Building Tallahassee, Florida 32301

Liz Cloud, Chief

Bureau of Administrative Code 1806 Capitol Building

Tallahassee, Florida 32301

Docket for Case No: 81-001620RX

Orders for Case No: 81-001620RX