STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES D. KENNEDY, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2888RX

) FLORIDA PAROLE AND PROBATION ) COMMISSION )

)

Respondent. )

)

FINAL ORDER

James D. Kennedy has filed a "Petition for Administrative Determination of Administrative Rule 23-19.01(5) of the Objective Parole Guidelines" pursuant to 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 November 25, 1981. The final hearing was scheduled and conducted on December 22, 1981.

At the final hearing, Hearing Officer's Exhibits 1, 2 and 3, and Respondent's Exhibit 1 were received into evidence. The parties presented oral argument respecting the legal issues and have submitted post-hearing legal briefs.

FINDINGS OF FACT

1. The Petitioner is presently incarcerated at Sumter Correctional Institution near Bushnell, Florida. Sumter Correctional Institution is a prison maintained by the Florida Department of Corrections. Petitioner was convicted for two separate robbery offenses based upon guilty pleas. He was sentenced to a prison term of ten years in connection with each conviction, the sentences to run concurrently. Petitioner is presently incarcerated based upon these convictions.

   
   

2. Petitioner was interviewed by an Examiner of the Florida Parole and Probation Commission for the purpose of establishing a recommended presumptive parole release date on February 26, 1981. Under rules of the Parole and Probation Commission 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 "high-robbery" and set the salient factor score at "1." Under Commission rules then in effect, the guidelines for a time range ("matrix time range") for that offense characteristic and salient factor score was fourteen to nineteen months. The Examiner recommended setting the

   presumptive parole release date at the longest period within the time range (nineteen months) and additionally recommended that several aggravating circumstances be considered. These circumstances were the existence of a concurrent sentence for robbery for which the Examiner recommended an additional nineteen months, the fact that a gun was used in one of the robberies for which the Examiner recommended an additional six months, and the fact that a knife was used in the other for which the Examiner recommended an additional six months.

   The Examiner thus recommended that the Petitioner serve a total of fifty months in prison and that his presumptive parole release date be set at March 13, 1984. Petitioner requested review of this recommendation before the Parole and Probation Commission. The Commission took final action on the review request on April 1, 1981, and affirmed the recommendation.

   
   

3. Commission Rule 23-19.01(5), Florida Administrative Code, has been amended since it was applied to the Petitioner. The rule as it existed when the Petitioner's presumptive parole release date was established 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.

   
   

   This rule continues to substantially affect Petitioner since it provided the basis for the setting of his presumptive parole release date. In adopting this rule, the Commission sought to develop criteria to predict the likelihood of successful parole. The presence of multiple sentences for multiple criminal behavior was considered an important factor in determining the likelihood of a successful parole experience.

   
   

   CONCLUSIONS OF LAW

   
   

4. 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), Florida Administrative Code, as it existed and was utilized in setting Petitioner's presumptive parole release date.

   
   

5. 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).

   
   

6. Petitioner contends that the rule is invalid because it has the effect of treating concurrent and consecutive sentences in the same manner, thus interfering with the judicial prerogative to determine whether sentences should be served concurrently or consecutively. This contention is without merit. Considering the existence of multiple separate offenses as aggravating factors in setting a presumptive parole release date 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

   (Chapter 947, Florida Statutes) 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:

   
   

   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 establish- ing 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.

      
      

      Considering multiple convictions as aggravating factors serves this legislative mandate whether consecutive or concurrent sentences were imposed judicially.

      
      

7. Petitioner has contended that in several respects his presumptive parole release date was set erroneously. Whether the Petitioner's presumptive parole release date was set properly or not does not relate to the validity of the Commission's rules. A proceeding brought in accordance with Section 120.56, Florida Statutes, cannot serve as a mechanism for reviewing the case-by-case application of rules. Other remedies exist for the Petitioner to test the validity of the presumptive parole release date that was set by the Parole and Probation Commission. A Section 120.56 rule challenge proceeding is not the remedy.

FINAL ORDER

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

ORDERED:

Petitioner has failed to establish that Florida Parole and Probation Commission Rule 23-19.01(5), Florida Administrative Code, constitutes an invalid exercise of delegated legislative authority, and the petition is accordingly dismissed.

DONE AND ORDERED this 13th day of January, 1982, in Tallahassee, Florida.

G. STEVEN PFEIFFER Hearing Officer

Division of Administrative Hearings Department of Administration

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 13th day of January, 1982.

COPIES FURNISHED:

Mr. James D. Kennedy #073115

Sumter Correctional Institution Post Office Box 667 F-119 Bushnell, Florida 33513

Malcolm Greenfield, Esquire General Counsel

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

Docket for Case No: 81-002888RX

Orders for Case No: 81-002888RX