STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEONARD EDWARDS, )

)

Petitioner, )

)

vs. ) CASE NO. 83-3609RX

)

PAROLE AND PROBATION ) COMMISSION, STATE OF FLORIDA, )

)

Respondent. )

)

FINAL ORDER

By agreement of the parties, this administrative rule challenge proceeding was presented by memoranda of law.

APPEARANCES

For Petitioner: Charles T. Scott, Qualified Representative Post Office Box 221

Raiford, Florida 32083

For Respondent: Doris E. Jenkins, Esquire

Florida Parole and Probation Commission 1309 Winewood Boulevard, Building 6

Tallahassee, Florida 32301 ISSUES

Whether Florida Parole and Probation Commission Rule 23-21.03(9)(b), Florida Administrative Code, containing Form PCG-4.4, constitutes an invalid exercise of delegated legislative authority proscribed by Section 120.56, Florida Statutes.

BACKGROUND

By Petition for Determination of the Invalidity of an Adopted Rule Form, filed November 16, 1983, Leonard Edwards ("petitioner") challenges the validity of Rule 23-21.03(9)(b) containing Form PCG-4.4, a form adopted and used by the Florida -'Parole and Probation Commission ("Commission")

The parties waived statutory time requirements, agreed no hearing was necessary, and presented this case by filing memoranda of law and a stipulation.

By order of January 24, 1984, Charles T. Scott, was accepted as a qualified representative for petitioner. The Commission subsequently filed a motion for summary judgment, which was denied.

FINDINGS OF FACT

1. Rule 23-21.03(9)(b) , Florida Administrative Code, the rule under challenge, contains a list of forms to be used by the Commission in parole grant-and-rescind types of proceedings. The particular form which is challenged is PCG-4.4, entitled "Special Commission Action."

   
   

2. The Commission on September 7, 1983, extended petitioner's presumptive parole release date (PPRD) by utilizing form PCG-4.4.

   
   

3. Petitioner and the Commission agree that invalidation of the challenged rule will not affect petitioner's PPRD.

   
   

4. Petitioner does not challenge the method by which Rule 23-21.03(9)(b) , Florida Administrative Code, was promulgated.

CONCLUSIONS OF LAW

1. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Petitioner has been substantially affected by the challenged rule and his standing is not contested by the Commission. See, $120.56, Fla.Stat. (1983)

   
   

2. Petitioner challenges a rule listing forms used by the Commission in parole grant-and-rescind types of proceedings, specifically form PCG-4.4, entitled "Special Commission Action." Section 120.53(1)(b) , Florida Statutes (1983), requires agencies, such as the Commission, to "adopt rules of practice setting forth the nature and requirements of all formal and informal procedures, including a list of all forms . . . . "(e.s.). Section 947.07 specifically empowers the Commission to adopt rules governing its practice and procedure.

   
   

3. Commission Rule 23-21.03(9)(b) , was adopted under the authority of Section 947.07 and is designed to fulfill the requirements of Section 120.53(1)(b) by listing each form used by the Commission.

   
   

4. Both parties agree that the proper method for challenging the computation of a PPRD is through Section 947.173, Florida Statutes (1983) , and ultimately by filing a petition for an extraordinary writ of mandamus. See, Pannier v. Wainwright, 423 So.2d 533 (Fla. 5th DCA 1982); Kirsch v. Greadington,

   425 So.2d 153 (Fla. 1st DCA 1983); Lowe v. Florida Parole and Probation Commission, 416 so.2d 470 (Fla. 1st DCA 1982)

   
   

5. A review of the petition, and petitioner's supporting brief, indicates that he is challenging the Commission's application or use of a form utilized to extend his PPRD, and not the validity, vel non, of the form, itself. 1/

   Indeed, he has provided no basis for invalidating a rule which simply lists a practice and procedure form used by an agency. The contents of the form are not challenged, the form is not in evidence. Petitioner has wholly failed to sustain his burden by establishing that the challenged rule constitutes an invalid exercise of delegated legislative authority. See, Agrico Chemical Co.

   v. State, etc. 365 So.2d 759, 763 (Fla. 1st DCA 1979). His petition, therefore, must be denied.

   
   

6. The real object of petitioner's attack is the Commission's extension of his PPRD. He may not, through the guise of a rule challenge, launch a collateral attack upon an order of the Commission. See, State Dept. of Health and Rehabilitative Services v. Barr, 359 So.2d 503 (Fla. 1st DCA 1978); State

Dept. of Health and Rehabilitative Services v. Professional Firefighters of Florida, Inc., 366 So.2d 1276 (Fla. 1st DCA 1979); Marion County School Board v. Clark, 378 So.2d 831 (Fla. 1st DCA 1979). The proper method for challenging a PPRD, as stipulated by the parties, is to file a petition for a writ of mandamus.

Based on the foregoing, it is ORDERED:

That the Petition for Determination of the Invalidity of an Adopted Rule Form, filed November 16, 1983, is DENIED.

DONE and ENTERED this 25th day of April, 1984, in Tallahassee, Florida.

R. L. CALEEN, JR. 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 25th day of April, 1984.

ENDNOTE

1/ As petitioner's brief concludes on page three: "The action taken pursuant to Rule Form PCG-4.4 was arbitrary and capricious and exceeded the Commission'S statutory authority."

COPIES FURNISHED:

Charles T. Scott Post Office Box 221

Raiford, Florida 32083

Doris E. Jenkins, Esquire Florida Parole and Probation Commission

1309 Winewood Blvd., Bldg. 6

Tallahassee, Florida 32301

Louie L. Wainwright, Secretary Department of Corrections 1311 Winewood Blvd.

Tallahassee, Florida 32301

Liz Cloud, Chief

Bureau of Administrative Code 1802 The Capitol

Tallahassee, Florida 32301

Carroll Webb, Executive Director Administrative Procedures Committee

120 Holland Building Tallahassee, Florida 32301

Docket for Case No: 83-003609RX

Orders for Case No: 83-003609RX