STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GARY M. PICCIRILLO, )

)

Petitioner, )

)

vs. ) CASE NO. 84-1094RX

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on July 24, 1984, at Lake Correctional Institution, Clermont, Florida.

APPEARANCES

For Petitioner: Gary A. Piccirillo, Pro Se

Lake Correctional Institution Clermont, Florida 32711

For Respondent: John A. Rimes, III, Esquire and

Lisa Santucci, Esquire Department of Legal Affairs The Capitol, LL04 Tallahassee, Florida 32301

By Petition to Determine the Invalidity of a Policy Rule, Gary A. Piccirillo, Petitioner, seeks to have a "written gain time" formula which has been programmed in a computer system declared invalid as not having been formally adopted as a rule. At the hearing Petitioner called four witnesses, Respondent called one witness, and one exhibit was admitted into evidence.

There was no dispute regarding the ultimate facts in this case. Proposed findings submitted by Respondent, to the extent they are included herein, are approved; otherwise they are rejected as not supported by the evidence, immaterial, or unnecessary to the results reached.

FINDINGS OF FACT

1. At all times materiel hereto Petitioner was an inmate at Lake Correctional Institution (LCI), was affected by the challenged rule, and had standing to bring this action.

   
   

2. Inmates in Florida prisons earn gain time as authorized in Section 944.275, Florida Statutes. This section provides that prisoners whose behavior is satisfactory shall be granted time off of their sentences (gain time) at the rate of 10 days per month; for each month the prisoner works diligently he may

   be granted up to 20 days incentive gain time; for the performance of an outstanding deed an inmate may be granted gain time from one to 60 days; and for infractions of discipline gain time may be taken away.

   
   

3. Each time an inmate is awarded gain time or gain time is deducted pursuant to these statutory provisions, the amount of gain time awarded or deducted is punched into the correctional institution's computer terminal, from where it is transmitted to Tallahassee to the main computer which keeps an accounting of each inmate's incarceration record.

   
   

4. An inmates's initial release date is computed by converting the length of his sentence into days, subtracting the time he was in custody prior to the date of his sentencing plus days off for good behavior, and adding this number of days to the inmate's sentencing date. Each time the gain time is increased or reduced because of the conduct of the inmate, the number of days involved is punched into the computer terminal at the correctional institution, transmitted to Tallahassee, and added to or deducted from the inmate's remaining prison sentence.

   
   

5. In 1973 the Legislature amended the statutes involving time off of inmate' sentences for good behavior by reducing the time awarded. However, a judicial decision required the State to compute gain time for inmates convicted prior to 1978 in accordance with the statutes in effect et the time of their sentencing. Petitioner was sentenced in 1977 and his gain time has been computed in accordance with the statutes in effect in 1977.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings.

   
   

7. Petitioner's contention that the programming of a computer to maintain a record of the gain time awarded to or subtracted from his prospective release date is a rule, is without merit.

   
   

8. No evidence was presented that in adding or deducting gain time from an inmate's prospective release date Respondent is doing anything different then is mandated by statute. Petitioner submitted no evidence to sustain his assertion that programming a computer to maintain the record of each inmate's prospective release date is a rule. Such a program is little different then would be programming a computer to generate the pay due each employee including required deductions, maintaining an inventory, or computing a tax liability.

   
   

9. From the foregoing it is concluded that Petitioner failed to prove, by a preponderance of the evidence, that programming a computer to maintain a record of each inmate's prospective release date by adding or subtracting gain time is a rule. It is therefore

ORDERED that the Petition of Gary Piccirillo for a ruling that the gain time formula used by Respondent to determine an inmate's prospective release date is invalid, be dismissed.

DONE AND ORDERED this 24th day of August, 1984, at Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division 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 24th day of August, 1984.

COPIES FURNISHED:

Gary A. Piccirillo

Lake Correctional Institution Post Office Box 99

Clermont, Florida 32711

John J. Rimes, III, Esquire and Lisa Santucci, Esquire Department of Legal Affairs The Capitol, LL04 Tallahassee, Florida 32301

Louis A. Verges, Esquire Department of Corrections 1311 Winewood Boulevard

Tallahassee, Florida 32301

Liz Cloud, Chief

Bureau of Administrative Code Department of State

The Capitol, Suite 1802 Tallahassee, Florida 32301

Carroll Webb, Executive Director Joint Administrative

Procedures Committee

120 Holland Building Tallahassee, Florida 32301

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

Tallahassee, Florida 32201

Docket for Case No: 84-001094RX

Orders for Case No: 84-001094RX