STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
ELZIE COOK, )
)
Petitioner, )
)
vs. ) CASE NO. 81-2549RX
) FLORIDA PAROLE AND PROBATION ) COMMISSION )
)
Respondent. )
)
RECOMMENDED ORDER
The Petitioner, Elzie Cook, has filed a Petition for Administrative Determination under the provisions of Section 120.56, Florida Statutes. Petitioner is seeking a determination that Florida Parole and Probation Commission Rule 23-19.01 (5), Florida Administrative Code, constitutes an invalid exercise of delegated legislative authority. The Director of the Division of Administrative Hearings entered an Order of Assignment on October 19, 1981. The final hearing was scheduled and conducted on November 13, 1981.
At the final hearing, Jay D. Farris, the Parole and Probation Commission'S Director of Planning and Evaluation, testified on behalf of the Respondent.
Hearing Officer's Exhibit 1 and Respondent's Exhibits 1, 2 and 3 were offered into evidence and received. The parties have submitted posthearing legal briefs.
FINDINGS OF FACT
Petitioner is an inmate incarcerated at Sumter Correctional Institution near Bushnell, Florida. The Petitioner was convicted for sexual battery and robbery in proceedings before the Circuit Court of the Seventh Judicial Circuit, State of Florida. On April 23, 1976, he was sentenced to serve 20 years for robbery and five years for sexual battery. Petitioner is presently incarcerated in accordance with these commitment orders.
On December 19, 1979, Petitioner was interviewed by an examiner of the Parole and Probation Commission for the purpose of recommending a presumptive parole release date (PPRD). Under the Commission rules then in effect, the examiner was to consider the gravity of the offense for which the Petitioner was sentenced, establish a "salient factor score" and consider any aggravating or mitigating circumstances. The examiner classified the offense as "greatest (most serious II)." He set the salient factor score as one. The examiner recommended setting the PPRD at the top of the appropriate range given the offense characteristic and salient factor score, and further recommended
aggravating this period because of the concurrent conviction for robbery. The examiner recommended a PPRD of September 7, 1982. The Parole and Probation Commission reviewed the recommendation and considered the robbery conviction as being a greater aggravating factor than applied by the examiner. The Commission set the PPRD for February 25, 1986. Petitioner sought further review of the PPRD by the Commission and was unsuccessful. Petitioner has also been unsuccessful in pursuing judicial relief in connection with the PPRD.
Commission Rule 23-19.01(5), Florida Administrative Code, as applied to the Petitioner, provided:
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 con- current sentences.
In adopting its rules, the Commission sought to develop criteria to predict the likelihood of successful parole. An inmate's history is the most reliable predictive device. Statistically, an inmate who has been convicted for more than one offense is a greater parole risk than an inmate who has been convicted for only one offense. The Commission's rule is thus a reasonable device for predicting the likelihood of successful parole.
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. Petitioner is substantially affected by the provisions of Parole and Probation Commission Rule 23-19.01(5), as it existed and was utilized in setting Petitioner'S PPRD.
Petitioner has asserted that Rule 23-19.01(5) is invalid because it violates the federal and state constitutional prohibition against ex post facto laws. A Hearing Officer of the Division of Administrative Hearings has no jurisdiction to resolve claims that an existing rule is unconstitutional. Department of Environmental Regulation v. Leon County, 344 so.2d 297 (1 DCA Fla. 1977).
Petitioner contends that the rule is invalid because it interferes with the judicial prerogative to determine whether sentences for multiple offenses should be served concurrently or consecutively. Section 921.16, Florida Statutes. This contention is without merit. Clearly, the Parole and Probation Commission has no authority to alter a judicially imposed sentence. Considering the existence of multiple separate offenses as aggravating factors in setting a PPRD does not serve to alter a sentence. Rather, it serves as an appropriate factor in considering the probabilities for success on parole. Nothing in the Objective Parole Guidelines Act of 1978, Florida Statutes, Chapter 947, prohibits the consideration of multiple offenses as aggravating factors when concurrent sentences have been imposed. Such consideration does serve to further the legislative intent of the chapter. Section 947.002,. Florida Statutes, provides:
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.
Objective parole criteria will be designated 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.
Section 947.165(1), Florida Statutes, provides in pertinent part: The commission shall develop and imple-
ment objective parole guidelines which shall be the criteria upon which parole decisions are made. . . . The objec- tive parole guidelines shall be devel- oped according to an acceptable research method and shall be based on the seriousness of offense and the likelihood of favorable parole outcome.
Considering multiple convictions as aggravating factors serves these legislative mandates whether consecutive or concurrent sentences were imposed judicially.
A party who challenges the validity of an agency's rules has the burden of proof. Agrico Chemical Company v. Department of Environmental Regulation,
365 So.2d 759 (1 DCA Fla. 1978). Petitioner has failed to establish that Parole and Probation Commission Rule 23-19.01(5), Florida Administrative Code, constitutes an invalid exercise of delegated legislative authority.
FINAL ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby,
That the Petition for Administrative Determination filed by the Petitioner, Elzie Cook, is hereby dismissed.
DONE AND ORDERED this 18th day of December, 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 18th day of December, 1981.
COPIES FURNISHED:
Mr. Elzie Cook #050371
B-107-S
Post Office Box 667 Bushnell, Florida 33513
Malcolm S. Greenfield, Esquire General Counsel
Florida Parole and Probation Commission
1309 Winewood Boulevard, Bldg. 6
Tallahassee, Florida 32301
Carroll Webb, Esquire Executive Director
Joint Administrative Procedures Committee
Room 120, Holland Building Tallahassee, Florida 32301
Ms. Liz Cloud, Chief Administrative Code Bureau Department of State
1802 The Capitol
Tallahassee, Florida 32301
=================================================================
DISTRICT COURT OPINION
=================================================================
IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA
ELZIE COOK, NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED.
vs. CASE NO.AJ-22
DOAH CASE NO.81-2549RX
FLORIDA PAROLE AND PROBATION COMMISSION,
Appellee.
/ Opinion filed June 23, 1982.
An Appeal from a Final Order of Division of Administrative Hearings; G. Steven Pfeiffer, Hearing Officer.
Elzie Cook, Pro Se.
No Appearance for Appellee.
MILLS, J.
Cook appeals the dismissal of a Section 120.56, Florida Statutes (1981), challenge to the Commission'S Rule 23-19.01(5).
We affirm.
The rule is not in conflict with Section 921.16(1), - Florida Statutes (1981).
The Division of Administrative Hearings does not have jurisdiction to dispose of constitutional issues in a Section 120.56 proceeding.
McCORD and SHIVERS, JJ., CONCUR.
MANDATE
From
DISTRICT COURT OF APPEAL OF FLORIDA FIRST DISTRICT
To the Honorable G. Steven Pfeiffer, Hearing Officer
WHEREAS, in that certain cause filed in this Court styled: Division of Administrative Hearings
ELZIE COOK
v. Case No. AJ-22
Your Case No. 81-2549RX
FLORIDA PAROLE AND PROBATION COMMISSION
The attached opinion was rendered on June 23, 1982.
YOU ARE HEREBY COMMANDED that further proceedings be had in accordance with said opinion, the rules of this Court and the laws of the State of Florida.
WITNESS the Honorable Robert P. Smith, Jr.
Chief Judge of the District Court of Appeal of Florida, First District and the Seal of said court at Tallahassee, the Capitol, on this 12th day of July, 1982.
Clerk, District Court of Appeal of Florida, First District
| Issue Date | Proceedings |
|---|---|
| Dec. 18, 1981 | CASE CLOSED. Final Order sent out. |
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 23, 1982 | Opinion | |
| Dec. 18, 1981 | DOAH Final Order | Rule making multiple offenses important factors in setting release dates is related to statute and valid. |
