STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROGER SMITH, )

)

Petitioner, )

)

vs. ) CASE NO. 91-5183RX

)

FLORIDA PAROLE COMMISSION, )

)

Respondent. )

)

FINAL ORDER

Pursuant to an Order of Assignment dated August 20, 1991, this case was assigned to Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Roger Smith, pro se

#081849

New River West Correctional Institution

Post Office Box 333 Raiford, Florida 32083-0333

For Respondent: Kurt E. Ahrendt

Assistant General Counsel Florida Parole Commission Building 6

1309 Winewood Boulevard

Tallahassee, Florida 32399-2450 STATEMENT OF THE ISSUES

Whether Rule 23-21.018(1) and (7), Florida Administrative Code, constitutes an invalid exercise of delegated authority?

PRELIMINARY STATEMENT

On August 12, 1991, the Petitioner, Roger Smith, filed a document titled "Initial Complaint." Pursuant to this document, the Petitioner challenged Rule 23-21.18 (1) and (7), Florida Administrative Code (hereinafter referred to as the "Challenged Rule"), pursuant to Section 120.56(4), Florida Statutes. The Petitioner alleged that the Challenged Rule was an invalid exercise of delegated authority. In particular, the Petitioner alleged that the Challenged Rule is an invalid exercise of delegated authority as defined in Section 120.52(8)(c), Florida Statutes.

On August 21, 1991, an Order to Show Cause was entered. The parties were informed in the Order to Show Cause that there did not appear to be any dispute

over the pertinent facts in this case. Therefore, it was indicated that the case would be disposed of without a formal hearing by assuming that the allegations of fact contained in the Initial Complaint were true, and allowing the parties an opportunity to file proposed final orders setting out the relevant undisputed facts and arguing the relevant law. The parties were given until August 30, 1991, to show cause why a formal hearing should be held.

On August 30, 1991, the Respondent filed a Response to Order to Show Cause and Motion to Dismiss. The Respondent indicated that it had no objection to the resolution of this matter in the manner set out in the Order to Show Cause. The Petitioner filed no response to the Order to Show Cause.

In the Motion to Dismiss the Respondent argued that the Petitioner lacked standing to institute this rule challenge and requested that the Initial Complaint be dismissed. On September 16, 1991, an Order Denying Motion to Dismiss and Establishing Dates for Filing Proposed Final Orders was issued. The Respondent's Motion to Dismiss was denied and the parties were informed that proposed final orders were to be filed on or before September 30, 1991, and that this Final Order would be issued on or before October 21, 1991.

On September 30, 1991, the parties both filed proposed final orders. The Respondent's proposed final order contained proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Final Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto. The Petitioner did not propose any findings of fact.

FINDINGS OF FACT

1. Standing.

   
   

   1. The Petitioner, Roger Smith, is an inmate in the custody of the Department of Corrections.

      
      

   2. The Petitioner is subject to the rules of the Respondent, the Florida Parole Commission, including the Challenged Rule.

      
      

   3. The Petitioner is serving a "parole eligible sentence."

      
      

   4. The Petitioner's eligibility for parole has been determined by the Respondent.

      
      

   5. The Petitioner was convicted of the offense of escape and, therefore, the Respondent applied the Challenged Rule to the Petitioner.

      
      

2. The Respondent.

   
   

   1. Sections 947.07 and 947.13, Florida Statutes, authorize the Respondent to adopt rules governing the parole of inmates in the State of Florida.

      
      

   2. Among other things, Section 947.13, Florida Statutes, authorizes the Respondent to determine who is placed on parole and to fix the time and conditions of parole.

      
      

   3. Pursuant to Sections 947.07 and 947.13, Florida Statutes, the Respondent promulgated the Challenged Rules.

3. Rule 23-21.018(1) and (7), Florida Administrative Code.

1. Rule 23-21.018(1) and (7), Florida Administrative Code, provides the following:

   
   

   1. Vacation of presumptive or effective parole release date: The exiting of an inmate from the incarceration portion of his sentence, which shall include but not be limited to bond, escape, parole or MCR release, expiration of sentence, or transfer to a mental health facility, shall vacate any established presumptive parole release date. Any subsequent return to incarcerations will require an initial interview to establish a presumptive parole release date. Provided, however, inmates returning to court for modification of a previously imposed sentence or as witnesses shall not have their presumptive parole release dates vacated. Inmates returning to courts outside of Florida's jurisdiction, i.e, Federal or other state, shall not have their presumptive parole release dates vacated. However, information resulting from disposition of cases in court may be used as new information in accordance with applicable law and these rules. Inmates transferred to a Mentally Disordered Sexual Offender Program shall not have their presumptive parole release dates vacated.

      . . . .

      1. Conviction for crimes committed while incarcerated: Escape or any other crime committed during incarceration with an ensuing conviction and sentence vacates any previously established presumptive parole release date and shall cause the inmate to be considered a new admission. If the inmate is found to be eligible for consideration for parole, the Commission shall aggregate.

         
         

         CONCLUSIONS OF LAW

         
         

         1. Jurisdiction.

            
            

2. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.56, Florida Statutes (1989).

   
   

   1. Standing.

      
      

3. The Petitioner has standing to institute the instant action. He is subject to the rules of the Respondent, including the Challenged Rule and the Respondent has applied the Challenged Rule to the Petitioner. See Department of Corrections v. Sumner, 447 So.2d 1388 (Fla. 1st DCA 1984).

   1. Nature of the Petitioner's Challenge.

      
      

4. The only appropriate challenge to an existing rule which may be brought before the Division of Administrative Hearings is a challenge pursuant to Section 120.56, Florida Statutes. The only relief which may be sought pursuant to Section 120.56, Florida Statutes, is a determination of the invalidity of the rule on the ground that the rule is an "invalid exercise of delegated authority."

   
   

5. What constitutes an "invalid exercise of delegated authority" is defined in Section 120.52(8), Florida Statutes, as follows:

   
   

   1. "Invalid exercise of delegated authority" means action which goes beyond the powers, functions, and duties delegated by the Legislature. A proposed or existing rule is an invalid exercise of delegated legislative authority if any one or more of the following apply:

      1. The agency has materially failed to follow the applicable rulemaking procedures set forth in s. 120.54;

      2. The agency has exceeded its grant of rulemaking authority, citation to which is required by s. 120.54(7);

      3. The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s. 120.54(7);

      4. The rule is vague, fails to establish adequate standards for agency decisions, or vest unbridled discretion in the agency; or

      5. The rule is arbitrary or capricious.

   
   

6. In order to challenge an existing rule, the person bringing the challenge must state with particularity which portion(s) of the above definition the challenged rule violates and the facts supporting such an allegation.

   
   

7. In this case, the Petitioner has alleged that the Challenged Rule constitutes an "invalid exercise of delegated authority" in violation of Section 120.52(8)(c), Florida Statutes, because the Challenged Rule "enlarges, modifies, or contravenes the specific provisions of law implemented "

   
   

   1. Burden of Proof.

      
      

8. The burden of proof in this proceeding was on the Petitioner. Florida League of Cities, Inc. v. Department of Insurance and Treasurer, 540 So.2d 850 (Fla. 1st DCA 1989); Department of Administration, Division of Retirement v. Albanese, 455 So.2d 639 (Fla. 1st DCA 1984); and Agrico Chemical Company v. Department of Environmental Regulation, 365 So.2d 759 (Fla. 2d DCA 1979).

   
   

   1. The Validity of the Challenged Rule.

   
   

9. The Petitioner has alleged that the Challenged Rule is invalid pursuant to Sections 120.52(8)(c), Florida Statutes, because the Rule "enlarges, modifies, or contravenes the specific provisions of law implemented "

10. Chapter 947, Florida Statutes, is titled the "Objective Parole Guidelines Act of 1978." Section 947.001, Florida Statutes. Pursuant to Section 947.002(1), the Legislature has declared, in part, the following intent in enacting Chapter 947:

    
    

    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 establishing parole dates for inmates.

       
       

11. Pursuant to Section 947.13, Florida Statutes, the Respondent is given the authority and duty, among other things, to determine who is to be placed on parole and to fix the time and conditions of parole "as provided in this chapter."

    
    

12. Section 947.168, Florida Statutes, provides that persons serving a parole-eligible sentence must be considered for parole. Section 947.172, Florida Statutes, requires that a "presumptive parole release date" be established by the Respondent for persons eligible for parole. Section 947.172(3), Florida Statutes, provides that the "presumptive parole release date shall become binding on the commission when agreement on the presumptive parole release date is reached."

    
    

13. A "presumptive parole release date" is defined in Section 947.005(4), Florida Statutes, as "the tentative parole release date as determined by objective parole guidelines."

    
    

14. Finally, Section 947.16(5), Florida Statutes, provides the following:

    
    

    (5) Within 90 days after any interview for parole, the inmate shall be advised of the presumptive parole release date. Subsequent to the establishment of the presumptive parole release date, the commission may, at its discretion, review the official record or conduct additional interviews with the inmate. However, the presumptive parole release date may not be changed except for reasons of institutional conduct or the acquisition of new information not available at the time of the initial interview.

    
    

15. Based upon the foregoing provisions of Chapter 947, Florida Statutes, the Petitioner has argued that, although the Respondent may "change" a presumptive parole release date once it is established, it may not "vacate" a presumptive parole release date as the Respondent has provided in the Challenged Rule. In further support of this argument, the Petitioner has cited Section 947.173(3), Florida Statutes, which provides:

    
    

    (3) The commission may affirm or modify the authorized presumptive parole release date. However, in the event of a decision to modify the presumptive parole release date, in no case shall this modified date be after

    the date established under the procedures of

    s. 947.172. It is the intent of this legislation that, once set, presumptive parole release dates be modified only for good cause in exceptional circumstances.

    
    

    See also Section 947.174, Florida Statutes.

    
    

16. The Petitioner's argument is without merit. Chapter 947, Florida Statutes, does not contemplate that a presumptive parole release date, once established, must exist in perpetuity. Even the Petitioner recognizes this fact. The Petitioner, however, has argued for too strict an interpretation of the terms "change" and "modify."

    
    

17. The Petitioner has failed to recognize that Section 947.16, Florida Statutes, in establishing the criteria for determining an inmates eligibility for parole, provides that only persons who are "confined in execution of the judgment of the court, and whose record during confinement or while under supervision is good . . . " are eligible for parole consideration. Any inmate that escapes is no longer "confined in execution of the judgment of the court .

    . . ." Therefore, if an inmate escapes from confinement, the inmate loses his or her eligibility to be considered for parole. The Respondent's provision for the vacating of an inmate's presumptive parole release date under the Challenged Rule if the inmate escapes is consistent with Chapter 947, Florida Statutes.

    See May v. Florida Parole and Probation Commission, 435 So.2d 834 (Fla. 1983); and Williams v. Florida Parole and Probation Commission, 515 So.2d 1044 (Fla. 1st DCA 1987).

    
    

18. Additionally, an inmate convicted of escape must have a new presumptive parole release date established pursuant to Chapter 947, Florida Statutes. In establishing the new presumptive parole release date all offenses for which the inmate is serving must be aggregated. See Section 947.165, Florida Statutes. Regardless of whether the original presumptive parole release date is said to have been "vacated", "modified" or "changed", the Respondent is required under Chapter 947, Florida Statutes, to consider an inmate's original sentence and any subsequent sentence for the offense of escape. To conclude that the Respondent's use of the word "vacate" in the process of considering how an inmate's presumptive parole release date should be effected by an escape is improper would be to place form over substance.

    
    

19. Based upon the foregoing, it is concluded that the Petitioner failed to prove that Rule 23-21.018(1) or (7), Florida Administrative Code, "enlarges, modifies, or contravenes the specific provisions of law implemented "

Therefore, Rule 23-21.018(1) and (7), Florida Administrative Code, does not constitute an invalid exercise of delegated authority pursuant to Section 120.52(8)(c), Florida Statutes, in violation of Section 120.56, Florida Statutes.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that the Petitioner has failed to prove that Rule 23-21.018(1) and

(7), Florida Administrative Code, is an invalid exercise of delegated authority

in violation of Section 120.56, Florida Statutes, and the Petitioner's Initial Complaint is DISMISSED.

DONE and ENTERED this 21st day of October, 1991, in Tallahassee, Florida.

LARRY J. SARTIN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 21st day of October, 1991.

APPENDIX TO FINAL ORDER

The Respondent has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Final Order where they have been accepted, if any.

Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Final Order

of Fact Number of Acceptance or Reason for Rejection

1 1.

2 Not relevant to this proceeding except to the extent that it supports a finding that the Petitioner has been incarcerated for a parole eligible offense. See 3.

3 See 2-5.

4 Hereby accepted.

5-6 See 5.

7-10 Not relevant to this proceeding. The action before the circuit court was not a rule challenge pursuant to Section 120.56, Florida Statutes.

COPIES FURNISHED:

Roger Smith #081849

New River West Correctional Institution Post Office Box 333

Raiford, Florida 32083-0333

Kurt E. Ahrendt

Assistant General Counsel Parole and Probation Commission Building 6

1309 Winewood Boulevard

Tallahassee, Florida 32399-2450

Donna Malphurs Suite 439

Department of Corrections 2601 Blairstone Road

Tallahassee, Florida 32399-2500

Carroll Webb, Executive Director Administrative Procedures Committee Holland Building, Room 120 Tallahassee, Florida 32399-1300

William L. Camper

Parole and Probation Commission General Counsel

1309 Winewood Bouelvard

Building 6, Room 338

Tallahassee, Florida 32399-2450

A. M. Tony Fontana

Parole and Probation Commission Commission Chairman

1309 Winewood Boulevard

Tallahassee, Flordia 32399-2450

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.

Docket for Case No: 91-005183RX

Orders for Case No: 91-005183RX