STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GARY M. PICCIRILLIO, DOUGLAS L ADAMS, ) and THOMAS R. FASENMYER, )

)

Petitioners, )

)

vs. ) CASE NO. 83-2216RX

) FLORIDA PAROLE AND PROBATION COMMISSION, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a final hearing in this cause on September 2, 1983, at Union Correctional Institution, Raiford, Florida.

APPEARANCES

For Petitioners: Gary M. Piccirillo, Pro se

D.C. No. 044130

Lake City Community Corrections Center Lake Jeffrey Road

(Railroad St. ,7th St.) Lake City, Florida 32055

Douglas L. Adams, Pro se

D.C. No. 031200

Union Correctional Institution Post Office Box 221

Raiford, Florida 32083

Thomas R. Fasenmyer, Pro se

D.C. No. 025866

Union Correctional Institution Post Office Box 221

Raiford, Florida 32083

For Respondent: John C. Courtney, Esquire

Assistant General Counsel

Florida Parole and Probation Commission 1309 Winewood Boulevard, Building 6

Tallahassee, Florida 32301 ISSUE PRESENTED

Petitioners in this proceeding are three inmates incarcerated at Union Correctional Institution, Raiford, Florida. The Respondent in this proceeding is the Florida Parole and Probation Commission. Petitioners challenge the validity of portions of three of Respondent's rules contending that promulgation

of these rules constitutes an invalid exercise of delegated authority. Specifically, Petitioners challenge Rule 23-21.02(12) and (15)(amended August 1, 1983), Rule 23-21.15 (effective parole release date interview procedures, amended August 1, 1983), and Rule 23-21.155 (extraordinary interview and review procedures, promulgated August 1, 1983). Generally, Petitioners contend that the procedures reflected in these rules violate the intent of the Objective Parole Guidelines Act of 1978. More specifically, they challenge the Commission's authority under Section 947.18, Florida Statutes to refuse to authorize a tentative or presumptive parole release date (PPRD) as an actual or effective parole release date (EPRD) , where such refusal is admittedly not based on any information or unfavorable institutional conduct received after the PPRD was initially established.

Respondent contends that, read as a whole, Chapter 947, Florida Statutes authorizes the procedures contained in the challenged rules and that pursuant to the Commission's duty to promulgate rules of practice under Section 120.53(1)(b)

, Florida Statutes, and its rule-making authority under Section 947.20, Florida Statutes, the challenged rules constitute a valid exercise of legislatively delegated authority.

Respondent has stipulated that Petitioner Fasenmyer has standing to bring this rule challenge. Petitioner Fasenmyer's EPRD was not authorized by Respondent, based upon a finding pursuant to Section 947.18, Florida Statutes, that he would be unable to live and conduct himself as a law-abiding citizen if placed on parole and, therefore, he has been directly affected by the rules being challenged herein. Respondent argues that Petitioners Piccirillo and Adams have not been subject to any commission action under the rules presently being challenged and that, therefore, their claims are speculative and merely address possible future action by the commission.

Final hearing in this cause was scheduled for September 2, 1983 by amended notice of hearing dated August 24, 1983. At the final hearing Petitioners Piccirillo and Adams testified in their own behalf, and offered Petitioner's Exhibits 1 and 2, which were received into evidence. A pre-hearing stipulation was received into evidence and, with the exception of factual allegations contained in paragraph (e)(4) thereof (pages 4-5), this document was accepted without objection as Hearing Officer's Exhibit No. 1

Proposed findings of fact and conclusions of law have been submitted by counsel for Respondent and by petitioner Piccirillo, on behalf of the three Petitioners. To the extent that these proposed findings of fact and conclusions of law are not contained in this order, they have been specifically rejected as being either irrelevant to the issues involved in this proceeding or as not having been supported by evidence of record.

FINDINGS OF FACT

Petitioners and Respondent have stipulated to the following facts:

1. Petitioners Piccirillo and Adams have PPRD's established under the Objective Parole Guidelines Act to be September 30, 1986 and November 11, 1991 respectively.

   
   

2. Respondent has not conducted effective parole release date interviews for Petitioners Piccirillo and Adams or otherwise reviewed their PPRD's for the purpose of establishing their effective parole release dates.

3. Petitioners Piccirillo and Adams are entitled to receive effective parole release date interviews in the future prior to the time their presumptive parole release dates arrive.

   
   

   Additional findings of fact are as follows:

   
   

4. The three Petitioners were all inmates at Union Correctional Institution, Raiford, Florida in the custody of the Department of Corrections at the time of final hearing.

   
   

5. Petitioner Fasenmyer's established PPRD of April 19, 1982 was extended by Respondent by 60 months pursuant to statutory authority contained in Section 947.18, Florida Statutes, by an order entered May 10, 1982. This action was taken at an effective parole release review of Petitioner Fasenmyer's case and followed his effective parole release date interview.

   
   

6. Respondent's order rendered May 10, 1982 recited the Commission's reasons for refusing to authorize Petitioner Fasenmyer's EPRD and for extending his PPRD 60 months to April 13, 1987.

   
   

7. Petitioner Fasenmyer sought appellate review of the commission's order in the First District Court of Appeal and that court, on its own accord, relinquished temporary jurisdiction to the commission to conduct another review of his case for purposes of adequately explaining the reasons for denial of appellant's parole and to report its findings, pursuant to such review, to the court.

   
   

8. On remand, the full commission entered an order on July 5, 1983 pursuant to procedures identical to and now incorporated in the challenged rules refusing to authorize Petitioner Fasenmyer's EPPD, reinstating his PPRD of April 19, 1982, and scheduling him for further consideration in December, 1983.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding, and each of the Petitioners herein have standing to maintain this rule challenge. Section 120.56, Florida Statutes.

   
   

10. The statutory scheme of parole in Florida underwent a major revision with the implementation of the Objective Parole Guidelines Act of 1978, Chapter 947, Florida Statutes. Therein the Legislature mandated a structured parole review process based on objective criteria. The former emphasis solely on rehabilitation was Supplemented through the use of "objective parole criteria designed to give primary weight to the seriousness of the offender's present criminal offense and his past criminal record." Section 947.002(2), Florida Statutes. To implement this objective parole review, the Commission was directed to develop and implement objective parole guidelines "based on the seriousness of offense and the likelihood of favorable outcome." Section 947.165(1), Florida Statutes.

    
    

11. With the adoption of these objective guidelines, all inmates eligible for parole consideration were to receive a presumptive parole release date (PPRD). Section 947.172, Florida Statutes. This PPRD was binding on the Commission in the sense that, once established, it was not to be modified except for reasons of institutional conduct, the acquisition of new information not available at the time the initial interview was conducted, or upon good cause

    and exceptional circumstances. Sections 947.16(4) and 947.13(3) , Florida Statutes. Baker v. Florida Parole and Probation Commission, 384 So.2d 746 (Fla. 1st DCA 1980).

    
    

12. Inmates are afforded continual review of this PPRD, at least biennially, to consider any new information which might require modification of this date. Section 947.174, Florida Statutes. Inmates are also afforded a final interview and review, shortly before the PPFD arrives, at which time the Commission is to determine whether to make the PPRD an effective parole release date (EPRD) . Section 947.1745, Florida Statutes (1982) . Once established, this EPRD requires that the prisoner either be released on parole or that the Commission conduct a hearing, complete with limited constitutional due process protections, to consider rescission of the order of parole. See, Demar v. Wainright, 354 So.2d 366 (Fla. 1978); Pannier v. Wainwright 423 So.2d 533 (Fla. 5th DCA 1982). Unchanged by the structured review provided by the Objective Parole Guidelines Act, however, is the Commission's concurrent duty to society to ensure that no prisoner be paroled unless and until the terms of Section 947.18, Florida Statutes, are satisfied. May v. Florida Parole and Probation Commission, 435 So.2d 834 (Fla. 1983). Section 947.10, Florida Statutes provides that:

    
    

    Conditions of parole.--No person shall

    be placed on parole merely as a reward for good conduct or efficient performance of duties assigned in prison. No person shall be placed on parole until and unless the commission finds that there is reasonable probability that, if he is placed on parole, he will live and conduct himself as a respectable and law-abiding person and that his release will be compatible with his own welfare and the welfare of society. No person shall be placed on parole unless and until the commission is satisfied that he will be suitably employed in self-sustaining employment or that he will not become a public charge. The commission shall deter- mine the terms upon which such person shall be granted parole. In addition to any other lawful condition of parole, the commission may make the payment of the debt due and owing to the state under s.960.17 or the payment of the attorney's fees and costs due and owing to a county under s.27.56 a con- dition of parole, subject to modification based on change of circumstances.

    
    

13. The procedures reflected in the challenged rules 23-21.02(12) and (15), 23-21.15 and 23-21.155, Florida Administrative Code constitute a valid exercise of the Commission's authority under Section 947.18, Florida Statutes.

    
    

14. Respondent, like all state agencies, is required to adopt rules informing the public of the procedures followed by the agency in both its formal and informal action. Section 120.53(1)(b) Florida Statutes. Under Section 947.20, Florida Statutes, the Commission is directed to "adopt general rules on the terms and conditions of parole and what shall constitute the violation thereof and may make special rules to govern particular cases." Recognizing both

    the authority and the duty to codify its procedures for invoking Section 947.18 to deny parole release, the Commission adopted the rules challenged herein.

    
    

15. Working together, the terms of Rules 23-21.02(12) and (15), 23021.15, and 23-21.155, Florida Administrative Code, allow the Commission in the context of structured parole review under the guidelines, to fulfill its duty to see that prisoners satisfy the statutory conditions of parole before being released. Under these rules, all inmates eligible for parole consideration will receive PPRD's which will be periodically reviewed and will ultimately become their EPRD's absent new information or unfavorable institutional conduct. In a small number of extraordinary cases, however, and pursuant to the procedures contained in the challenged rules, the full commission may decline to authorize an EPRD solely upon its determination that the prisoner does not meet the requirements of Section 947.18, Florida Statutes. Thereafter, consistent with the statutory provisions precluding modification of an established PPRD absent new information or unfavorable institutional conduct and requiring periodic review, the PPRD will remain unchanged and the inmate will be afforded biennial review to determine whether he is eligible for parole release under Section 947.18, Florida Statutes. Rule 23-21.155, Florida Administrative Code.

    
    

16. The procedures provided for by the challenged rules are consistent with the requirements of Chapter 947, Florida Statutes. All eligible inmates are assured of being scored under a uniform set of guidelines and are to be given a tentative parole release date. Nevertheless, as the Legislature has recently reaffirmed in modifying the intent section of Section 947.002(6), Florida Statutes, parole "...is an act of grace of the state and shall not be considered a right." Parole release is only to be afforded when the commission can find a reasonable probability that releasing the inmate on parole is consistent with the interests of both the inmate and of society, Section 947.18, Florida Statutes. As the Florida Supreme Court recently noted in considering the relative importance of PPRDs determined under the objective guidelines:

    
    

    ...It is true that the commission has devel- oped and implemented, as required by law, objective parole guidelines as the criteria upon which parole decisions are made. Nevertheless,

    Chapter 947, Fla. Stat., taken as a whole, leaves the ultimate parole decision to the discretion, albeit guided by its own administrative rules, of the commission.

    
    

    We are unable to assume, as May would have us, that the implementation of objective parole guide- lines has rendered 947.18 mere surplusage.

    Indeed, the use of the terms "guidelines" and "presumptive parole date" clearly conveys the message that the final parole decision will depend upon the commission's findings that the prisoner meet the conditions provided in 947.10.

    
    

    May v. Florida Parole and Probation Commission, 435 So.2d 834, 837 (Fla. 1983).

    
    

17. By specifying how the Commission will carry out its mandate under Section 947.18, Florida Statutes, the challenged rules are consistent with and reasonably related to the Commission's statutory duties as set forth in Chapter 947, Florida Statutes.

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

That the relief requested by Petitioners be, and the same is hereby DENIED, and this cause dismissed.

DONE and ORDERED this 27th day of March, 1984 in Tallahassee, Florida.

WILLIAM E. WILLIAMS

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 27th day of March, 1984.

COPIES FURNISHED:

Gary M. Piccirillo Lake City Community

Corrections Center Lake Jeffrey Road (Railroad St., 7th St.)

Lake City, Florida 32055

Douglas L. Adams and Thomas R. Fasenmyer

Union Correctional Institution Post Office Box 221

Raiford, Florida 32083

Carroll Webb, Executive Director Administrative Procedures Committee

120 Holland Building Tallahassee, Florida 32301

Liz Cloud, Chief

Bureau of Administrative Code 1802 The Capitol

Tallahassee, Florida 32301

Assistant General Counsel Florida Parole and

Probation Commission

1309 Winewood Boulevard, Bldg. 6

Tallahassee, Florida 32301

Docket for Case No: 83-002216RX

Orders for Case No: 83-002216RX