STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GARY M. PICCIRILLO, )

)

Petitioner, )

)

vs. ) CASE NO. 84-1093RX

) FLORIDA PAROLE AND PROBATION ) COMMISSION, )

)

Respondent. )

)

FINAL ORDER

A hearing was held in the above-captioned matter, after due notice, at Orlando, Florida, on April 30, 1984, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Gary M. Piccirillo, pro se

Orlando Community Correctional Center Orlando, Florida 32818

For Respondent: Kurt E. Ahrendt, Esquire

Assistant General Counsel

Florida Parole and Probation Commission 1309 Winewood Boulevard, Building 6

Tallahassee, Florida 32301 BACKGROUND

This case involves a petition for an administrative determination of the validity of an existing rule, Respondent's Rule 23-21.12, Florida Administrative Code, pursuant to Section 120.56, Florida Statutes.

The rule in question became effective on September 10, 1981, and was subsequently amended October 1, 1982.

Petitioner filed his petition on March 25, 1984, and the petition was received at the Division of Administrative Hearings on March 27, 1984. On April 4, 1984, the case was assigned to the undersigned for hearing, and the hearing was held as stated above within 30 days of assignment to a Hearing Officer.

Prior to the hearing, Respondent filed a Motion to Dismiss the petition on its allegation that Petitioner lacked standing to bring the instant rule challenge and that Petitioner has failed to allege facts sufficient to show that the rule constitutes an invalid exercise of delegated legislative authority.

The motion was denied.

At the hearing, Petitioner requested that the Hearing Officer take official recognition of the rule in question. This was done. Petitioner testified in his own behalf, but did not call additional witnesses or introduce any exhibits. Respondent called no witnesses and introduced Respondent's Exhibit A.

FINDINGS OF FACT

1. The parties stipulated that Petitioner, Gary N. Piccirillo, was afforded a presumptive parole release date interview on May 14, 1982. Thereafter, on June 9, 1982, Respondent, Florida Parole and Probation Commission (FPPC), considered Petitioner's presumptive parole release date (PPRD) and set it for September 30, 1986. On June 28, 1982, Petitioner sought review of his established PPRD pursuant to Rule 23-21.12, Florida Administrative Code, and Section 947.173, Florida Statutes. In November 1983, a special parole interview was granted Petitioner, but the Commission at that hearing declined to change or modify Petitioner's PPRD. Petitioner's next biennial interview for review of his PPRD is scheduled for September 1984. However, Petitioner is currently scheduled to be released from confinement in either September or October 1984, if he is given credit for all earned gain time.

   
   

2. Petitioner questions that portion of the rule which provides for only one review of the Commission action establishing or changing the PPRD, but apparently fails to recognize that portion which also provides for subsequent (biennial, special, or effective) establishments of PPRD, which tend to ensure at least periodic reviews of the PPRD.

   
   

3. Petitioner attacks the validity of the rule, as amended on October 1, 1982, as it pertains to Sections (1)(e) and (2). He contends that (1)(e), which calls for verification of written or printed evidence provided directly by the inmate and notification to the proper state attorney if any of this evidence is invalid because it constitutes a threat of a penalty, which tends to inhibit the average inmate from presenting evidence he might otherwise present. Petitioner does not question the propriety of reporting false information, only the inclusion of a basis for doing so within the rule.

   
   

4. Petitioner also contends that that portion of Paragraph (2) of the rule which provides that the Respondent will not address matters within certain categories, unless new factual information came into existence after the initial interview, is unfair, unduly restrictive, and places an unreasonable burden on prisoners who would be unprepared psychologically to present all their information at the initial interview in its best light. Petitioner contends that after the newness of incarceration wears off and the individual is more comfortable with the system, he would be better prepared to present this information again.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding

   
   

6. Sections 120.56(1) and (2), Florida Statutes (1983), provide in pertinent part that:

   
   

   1. Any person substantially affected by a rule may seek an administrative determination of the invalidity of the rule on the ground that the rule is an invalid

      exercise of delegated legislative authority.

   2. The petition seeking administrative determination under this section shall be in writing and shall state with particularity facts sufficient to show the person seeking relief is substantially affected by the rule and facts sufficient to show the invalidity of the rule.

      
      

7. In his petition, Petitioner relates no factual allegations regarding the invalidity of the rule in question. Aside from statements regarding why he thinks the rule is invalid, he provides no facts in support of his position.

   
   

8. Petitioner alleges that the rule imposes a penalty without statutory basis therefor, contrary to Section 120.40(14), Florida Statutes, which in pertinent part provides:

   
   

   The commission may accept any written or printed evidence purporting to be an official court record directly from the inmate, however, any such evidence shall be verified by the commission and if verification provides any portion of the printed evidence to be invalid or false, the commission shall inform the proper state attorney.

   
   

   This rule is totally consistent with the terms of the statute upon which it is based. It is the statute itself, a legislative enactment, which proscribes a particular course of conduct for the submission of invalid or false information; and, while this course of conduct may result in the imposition of a penalty, the penalty would be imposed by the courts, not by the Commission. The "threat," if such it can be called, to report a violation of the law to the appropriate authority cannot be construed as the imposition of a penalty, since it is obligatory upon state officers to do so.

   
   

9. Petitioner also claims the rule in question impairs and exceeds its specific statutory authority and places additional requirements on inmates who seek Commission review of their PPRDs. Petitioner contends that this is a violation of Section 947.173, Florida Statutes. Here, Petitioner refers to Subparagraph (2) of the amended rule, which states:

   
   

   (2) Review of Subsequent (Biennial, Special or Effective) Establishment of

   P.P.R.D. An inmate initiated review of a presumptive parole release date established after a biennial, special or effective interview shall be limited in scope to new information gathered about the inmate after the inmate's initial interview. The Commission will not address matters of salient factor score, severity of offense behavior or aggravating or mitigating factors unless new factual information came into existence after the initial interview. Examples of new factual information related to salient factor score, severity of offense

   behavior, aggravation or mitigation include but are not limited to reversal of a conviction, new trials, pardons, clemency, change in sentence structure.

   
   

10. It is clear that this rule provision provides for review of new information gathered since the inmate's initial interview, which would include mitigating factors as well as other information pertinent to a review of the inmate's case. Those items of information, which Petitioner fears might be excluded, such as reversal of the conviction, pardons, clemency, etc., are specifically provided for to be reviewed on the basis of new information in the rule. The limitations as to new information serve only to prevent the use of previously considered information and arguments in a legitimate effort to limit the number of times the Commission must consider the same information.

    
    

11. PPRDs are established to provide for a systematic and orderly discharge of inmates upon the conclusion of their sentence as modified by other factors, such as gain time and the like. The statute which governs PPRDs specifically provides for periodic reviews in accordance with a predetermined, openly identified schedule. It additionally, however, provides for one inmate requested review of the PPRD. These limitations are set to support the stated legislative intent found in Section 947.173(3), wherein it is stated:

    
    

    It is the intent of this legislation that, once set, presumptive parole release dates be modified only for good cause in exceptional circumstances.

    
    

    Section 947.174, Florida Statutes, provides for the subsequent interview referenced above and clearly indicates that these reviews are to be limited in scope to new information not previously considered.

    
    

12. There are ample court decisions which stand for the proposition that reviews of PPRDs can be controlled and limited, as necessary, both in number and scope. Sheets v. Florida Parole and Probation Commission, 423 So. 2d 646 (Fla. 1st DCA 1982); Myers v. Florida Parole and Probation Commission, 423 So. 2d 481 (Fla. 1st DCA 1982); Van Poyck v. Florida Parole and Probation Commission, 431 So. 2d 692 (Fla. 1st DCA 1983). These cases and others consistently hold against the requirement to "relitigate" presumptive parole release dates.

    
    

13. Since it is Petitioner's burden to establish the invalidity of the rule being challenged [Agrico Chemical Co. v. Dept. of Environmental Regulation,

    365 So. 2d 759 (Fla. 1st DCA 1979)], it is clear that he presented no evidence during the hearing to successfully establish that the rule in question, Rule 23- 21.12, Florida Administrative Code, either exceeds its statutory authority or is otherwise unreasonable, arbitrary, or capricious.

    
    

14. Respondent has submitted a proposed final order which includes proposed findings of fact and conclusions of law. The proposed findings and conclusions have been adopted only to the extent that they are expressly set out in the Findings of Fact and Conclusions of Law above. They have been otherwise rejected as contrary to the better weight of the evidence, not supported by the evidence, irrelevant to the issues, or legally erroneous.

FINAL ORDER

Based upon the Findings of Fact and Conclusions of Law received herein, it

is

ORDERED THAT:

Petitioner has failed to demonstrate that Rule 23-21.12, Florida

Administrative Code, exceeds its statutory authority or is otherwise unreasonable, arbitrary, or capricious. Accordingly, the petition is DISMISSED.

DONE and ORDERED this 18th day of June, 1984, in Tallahassee, Leon County, Florida.

ARNOLD H. POLLOCK

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 18th day of June, 1984.

COPIES FURNISHED:

Mr. Gary M. Piccirillo

Orlando Community Correctional Center Post Office Box 15979

Orlando, Florida 32858

Kurt E. Ahrendt, Esquire

Florida Parole and Probation Commission 1309 Winewood Boulevard, Building 6

Tallahassee, Florida 32301

Carroll Webb, Esquire Executive Director

Administrative Procedures Committee

120 Holland Building Tallahassee, Florida 32301

Ms. Liz Cloud, Chief Administrative Code Bureau Department of State

The Capitol, Suite 1802 Tallahassee, Florida 32301

Docket for Case No: 84-001093RX

Orders for Case No: 84-001093RX