STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WALTER THOMAS, )

)

Petitioner, )

)

vs. ) CASE NO. 77-0728RX

) CASE NO. 77-1258RX

FLORIDA PAROLE AND )

PROBATION COMMISSION, )

)

Respondent. )

)

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This cause commenced with Petitioner's Amended Petition For Administrative Determination, DOAH Case No. 77-728RX, filed June 14, 1977. On July 14, 1977, Petitioner filed another Petition For Administrative Determination, DOAH Case No. 77-1258RX. These cases were consolidated on August 11, 1977, by order of the Hearing Officer and final hearing held on August 30, 1977, before the undersigned Hearing Officer.

APPEARANCES

For Petitioner: Richard Belz, Esquire

Florida Legal Services, Inc. Prison Project

2614 Southwest 34th Street Gainesville, Florida 32608

For Respondent: Carolyn M. Snurkowski, Esquire

General Counsel

Florida Parole and Probation Commission 1117 Thomasville Road

Tallahassee, Florida 32303

In his Amended Petition For Administrative Determination, Case No. 77- 728RX, Petitioner alleges that the manner in which Respondent conducts final parole revocation hearings, both before a single member of the Respondent Commission and a majority of the Respondent Commission, is a practice which constitutes a rule as defined by Section 120.52(14), Florida Statutes, and as such is an invalid exercise of delegated legislative authority. In his Petition For Administrative Determination, Case 77-1258RX, Petitioner alleges that the Respondent routinely charges parolees with a violation of the conditions of their parole on the basis of the same facts and matters whereupon the parolees were found innocent of criminal charges in a court of law, which practice Petitioner alleges constitutes a rule as defined by Section 120.52(14), Florida Statutes, and as such is an invalid exercise of delegated legislative authority. The Petitioner has not alleged and has not attempted to prove that the alleged "rules" which he challenges are codified in the Florida Administrative Code or

otherwise formally set forth in writing. Rather, Petitioner has alleged and attempted to prove that a particular practice of the Respondent is so prevalent and accepted as to constitute an agency statement of general applicability that implements, interprets or prescribes law or policy or describes the organization, procedure, or the practice requirements of Respondent and that as such the particular practice constitutes a "rule" as defined by Section 120.52(14), Florida Statutes.

At the time of final hearing the Hearing Officer took under advisement Respondent's Motion To Dismiss this cause. That motion was based on a case cited to the Hearing Officer by the Respondent as Beagles v. Wainwright, Case No. DD-335, Opinion filed First District Court of Appeal, February 11, 1977. Respondent argues that the case stands for the proposition that parole revocation hearings are not regulated by the administrative hearing practices set forth in Chapter 120, Florida Statutes. In support of its motion Respondent has furnished the Hearing Officer a copy of an order entered by the First District Court of Appeal dated February 11, 1977, wherein it states, in its entirely, "On Petition for Re-Hearing the Petition for Writ of Habeas Corpus is denied." Respondent also furnished the Hearing Officer with copies of some of the pleadings in that action and argues that consideration of the foregoing order in light of those pleadings conclusively shows that the First District Court of Appeal has held that the hearing requirements set forth in Chapter 120, Florida Statutes, are not applicable to parole revocation hearings. It is the conclusion of the Hearing Officer that to read into the order, which was without opinion, such intention on the part of the court as advanced by Respondent would be presumptuous. Furthermore, even if such an interpretation were to be given the referenced order of the First District Court of Appeal, it would not be totally dispositive of this cause. Therefore, Respondent's Motion To Dismiss is DENIED. All pending motions not otherwise disposed of are hereby DENIED.

FINDINGS OF FACT

1. The parties to this proceeding were afforded due and proper notice according to law of the final hearing.

   
   

2. Petitioner was granted a Mandatory Conditional Release (hereinafter MCR) from a Florida state prison on October 31, 1975. He would have been Supervised in the same manner as a person released on parole until the expiration of his sentence on March 7, 1978. On October 8, 1976, the Petitioner received a directed verdict of acquittal from the Honorable Judge Allen R. Schwartz in Case No. 76-6250, State of Florida v. Walter Thomas, in the Eleventh Judicial Circuit Court in and for Dade County, wherein the Petitioner was charged with the crime of sexual battery against a female in violation of Section 794.011, Florida Statutes. The Respondent Subsequently charged Petitioner with the violation of Condition 8 of his MCR Certificate " . . . by failing to live and remain at liberty without violating the law, in that on or about July 6, 1976, in Dade County, Florida, [he] did unlawfully participate in the involuntarily sexual battery of . . ." a named female.

   
   

3. Pursuant to Petitioner's request, Respondent held what it terms a "majority" final revocation hearing on February 4, 1977, with Commissioners Maurice G. Crockett, Ray E. Howard, Annabelle P. Mitchell and Charles J. Scriven present. The Respondent revoked Petitioner's MCR in an Order dated February 10, 1977, signed by Commissioners Roy W. Russell, Ray E. Howard, Maurice G. Crockett and Armond R. Cross. On April 7, 1977, the Commission issued an Amended Order correcting a clerical omission in its original order. Although Respondent had

   the discretion to grant credit for the time Petitioner spent on MCR no such credit was granted.

   
   

4. On July 1, 1977, Petitioner was again released on her to remain thereon until the expiration of his sentence. Since he had not received credit for the time previously spent on NCR his current sentence expiration date has been extended from March 7, 1978 to "November 11, 1978.

   
   

5. Section 947.23(1), Florida Statutes, states that:

   
   

   "As soon as Practicable after the arrest of a person charged with violation of the terms and conditions of his parole, such parolee

   shall appear before the commission [Respondent] in person . . . and a hearing shall be had in which the state and the parolee may introduce such evidence as they may deem necessary and Pertinent to the charge of parole violation."

   
   

   The same section further provides that after the foregoing hearing the Commission shall make findings upon such charge of parole violation and shall enter an order determining whether the charges have been sustained and by that order shall revoke the parole or reinstate the original order of parole or enter such other order as the Commission may deem proper. The evidence in this case establishes that the Respondent has an established procedure and practice by which it implements the foregoing statutory requirement. Rule 23-16.09(3), F.A.C., entitled "Hearings; Revocation of Parole" sets forth, in part, this Procedure and Practice. It does not, however, set forth the complete procedure and Practice. It provides that a parolee can elect to appear either before a majority of the Commission or one Commissioner. Rule 23-16.09(3), F.A.C. Apparently following that Provision Respondent conducts two types of final parole revocation hearings. The great majority of these are referred to as "single member hearings" wherein the alleged violator agrees to have a single member of the Respondent Commission conduct the final hearing. The remainder are referred to as "majority member hearings" where a hearing panel of four members of the Commission conduct the final hearing. The manner in which the foregoing types of hearings are conducted by Respondent and a final order entered pursuant thereto has, by the Practice of the agency, become quite formalized and definite but has not been codified in the Florida Administrative Code.

   
   

6. The procedure and practice of Respondent in the conduct of single member parole revocation hearings is well established and inflexible. The single member hearings are held every Friday with one member of the Commission present and conducting the hearing. The Commissioner receives the waiver of the alleged violator to a majority hearing and resolves the question of the alleged violator's right to counsel. The charges are then read, witnesses sworn and permitted to testify, evidence taken and the alleged violator permitted to admit or deny the charges and to testify. The single Commissioner takes notes and fills out a brief one page form which in part contains his recommendation and eight lines for the alleged violator's Statement, mitigating circumstances and witness statements. This form along with all evidence presented at the hearing is placed in the alleged violator's file which is then returned to Tallahassee, Florida, for further action.

   
   

7. As soon as possible upon arriving in Tallahassee, usually within the next five (5) working days, the case is placed on the voting panel docket. The

   Commission maintains a duty roster which requires four members of the Commission to meet in the regularly scheduled voting panel meeting, normally held on Thursday of each week, to review those cases docketed for that panel. This duty roster for the voting panel is compiled without regard to which Commissioner conducted the hearings which are to come before the voting panel. Each Commissioner on the voting panel has had access and opportunity to review individually all information, evidence, recommendations and other matters in the file on the alleged violator and to review the record of the hearing. The evidence, however, establishes that it is rare indeed for any of the members of the voting panel to have read the record of the hearing on which they vote. The evidence further establishes that the Commission has no requirement that those members of the voting panel who did not hear the case read the record. Although a tape recording or court reporter's notes are made of the parole revocation hearing they are seldom transcribed and almost never read by the Commissioners sitting on the voting panel.

   
   

8. Usually, the Commissioner who conducted the single member hearing is present at the meeting of the voting panel which is to consider that case. It is further the practice of the agency for that Commissioner who held the hearing to then tell the voting panel the facts as he knew them in addition to the information on the form referred to above. The alleged violator nor his counsel is allowed to appear at the voting panel's meetings. In practice, the members of the voting panel do not read the record of the hearing below nor do they read the entire file made available for their perusal. That file may contain matters not presented in evidence at the parole revocation hearing. After consideration of the file and record as they see fit and having heard the remarks of the Commissioner who conducted the hearing, and engaged in such discussion as they deem appropriate, the voting panel votes on the disposition of the case before it. It is the position of Respondent in considering parole revocations that Section 947.06, Florida Statutes, requires four (4) Commissioners voting together to restore or revoke the alleged violator's mandatory conditional release or to discharge the matter. Therefore, should a split vote occur at the voting panel meeting the Commissioner who held the hearing must then attempt to seek a majority vote from other members of the Commission on whether to restore, revoke or discharge. A typical situation would find four of the seven Commissioners sitting on the voting panel, a fifth Commissioner having conducted the single member hearing, and two remaining Commissioners, who were neither at the parole revocation hearing nor the meeting of the voting panel. If the voting panel is not unanimous in its disposition of the hearing these remaining Commissioners are then lobbied by the Commissioner who held the hearing and perhaps some or all of the Commissioners who sat on the voting panel, to cast their vote in order that there may be four votes together on whether to revoke restore, or discharge. These two members are not required by the practice of the Respondent to read the record of the parole revocation hearing or review the file of Respondent on the alleged violator and, in fact, do not generally read the full record or review the entire file.

   
   

9. A majority member parole revocation final hearing is the same as a single member final hearing with the exceptions noted below. Instead of a single member of the Commission being present and conducting the hearing, four members of the Commission are detailed to hold the majority hearings which are held on the first Friday of each month. The four sit and listen to the testimony and evidence, taking notes and filling out a face sheet similar to that form used in a single member hearing. Immediately following the hearing the four members discuss the case and frequently a tentative vote is taken and recorded informally on the face sheet which is then included in the file and returned with the record of the hearing to Tallahassee.

10. Cases which have been heard by four members of the Commission are placed on a voting panel docket just as are cases heard by a single member of the Commission. The voting panel members are rarely, if ever, the same four members of the Commission who attended and held the final revocation hearings, although some members of the voting panel will have sat on the hearing panel.

    As in a single member hearing coming before the voting panel, the panel discusses and reviews each case on the docket with the file readily available to each member of the Commission at the voting panel meeting. However, just as in the case of the single member hearing reviewed by the voting panel, the members of the voting panel are not required to read the record of the final hearing or fully review the file made available to them on the alleged violator and generally have not done so.

    
    

11. Following a review and discussion of the docketed cases a vote is taken by the voting panel. The Respondent takes the position that, pursuant to Section 947.06, Florida Statutes, there must be four votes in agreement to restore, revoke or discharge. Should a split vote occur in the voting panel the remaining three Commissioners are approached by members of the voting panel and their vote recorded to revoke, restore or discharge. This vote is not generally done at a regularly scheduled meeting of any sort and these Commissioners are not required to and generally have not read the record nor fully reviewed the file in the matter.

    
    

12. Once four members of the Commission are in agreement to revoke, restore, or discharge, the staff is directed to prepare a final order which order informs the violator of the charges alleged, the decision of the Commission, a brief summary of the evidence relied upon and the effective date of said action. The order further contains the signatures of the members of the Commission who took the action.

    
    

13. It is the announced practice of Respondent that when the Commissioners consider and determine whether the alleged violator is guilty of the charges they do not consider information outside the record of the final revocation hearing, although the agency file, which is generally not introduced at the hearing, is available to the Commissioners. However, it is also the announced practice of the Respondent that after determination by the Commission that the alleged violator is guilty of the charges, but before the entry of any final order, the Commissioners will consider matters outside the record of the final revocation hearing. The Respondent does not give the alleged violator or his counsel notice of this evidence or an opportunity to respond to it. This evidence is considered by the Commission after a determination of guilt for the purpose of deciding whether to restore MCR even though the violator was guilty of the charges, to simply revoke, or to grant credit for time on MCR even though it is revoked.

    
    

14. The testimony of the Commissioners appearing in this proceeding establish that those Commissioners voting on these revocation matters who were not present at the final hearing get to know the facts presented at the hearing Primarily by word of mouth from the Commissioner or Commissioners who were present at the final hearing. It further establishes that the Commissioners who vote on these revocation matters and who were not present at the final hearing do not generally, though in some cases they may, review all of the evidence presented at the final revocation hearing.

    
    

15. Respondent Presently brings revocation charges against a conditional releasee who has been tried for a criminal offense while on conditional release.

    Further, even though the conditional releasee is found innocent by reason of a directed verdict of acquittal, or a jury verdict of not guilty, or a verdict of not guilty in a non-jury trial, Respondent charges and may revoke said conditional release on the same or similar facts and matters raised at the criminal proceeding if Respondent finds that the terms and conditions of the releasee's MCR were violated.

    
    

16. Petitioner has attempted to prove that it is the rule of Respondent to issue final orders affecting substantial interests which do not include findings of fact and conclusions of law separately stated. The evidence presented establishes that, although there may be genuine disagreement on whether a certain final order affecting substantial interests contain proper findings of fact and conclusions of law, nevertheless, it is the policy of the agency to include such findings and conclusions in its final orders.

    
    

17. Respondent argues that it has formally promulgated as rules Chapters 23-16 and 23-17, Florida Administrative Code, which chapters establish the practices and procedures utilized by Respondent in the granting and revocation of conditional releases. Further, Respondent points out that Rule 23-16.09, Florida Administrative Code, entitled "Hearings; Revocation of Parole" is the formally promulgated rule dealing with parole revocation hearings. The evidence establishes that the practices and procedure set forth in paragraphs 3, 4, 5, 7 and 8 above are not formally codified by the Respondent and have not been promulgated in accordance with Chapter 120, Florida Statutes. The evidence further establishes that these practiced and procedures apply, without exception, to all final parole revocation hearings and are the practices and procedures used by the Respondent to implement its statutory responsibilities under Chapter 947, Florida Statutes, and specifically Section 947.23, Florida Statutes. These practices and procedures have been in effect for several years and, although not formally codified, the Commissioners, by their testimony and responses to discovery, have stated these practices and procedures to be those of the agency applicable to all final revocation hearings.

    
    

    CONCLUSIONS OF LAW

    
    

18. This matter arises under Section 120.56, Florida Statutes, wherein the Division of Administrative Hearings has the Responsibility and jurisdiction to make an administrative determination of the invalidity of rules on the grounds that the rules challenged are an invalid exercise of delegated legislative authority.

    
    

19. In order to prosecute a petition pursuant to Section 120.56, Florida Statutes, seeking an administrative determination of the invalidity of an alleged rule the Petitioner must show that he is Substantially affected by the alleged rule. In this cause, after Petitioner had been released from prison on parole the Respondent, pursuant to the alleged rules challenged, instituted and conducted a proceeding to revoke that parole and did, in fact, revoke Petitioner's parole. This cause initially arose then Petitioner's Amended Petition For Administrative Determination, DOAH Case No. 77-728RX, was filed on June 14, 1977. At that time Petitioner was in prison because of the revocation of parole pursuant to the alleged rules challenged herein. Thus, at the time of the filing of his petition Petitioner could show an injury which was accompanied by continuing, present adverse effect, to wit, imprisonment, which effect was substantial. On July 1, 1977, Petitioner was again released on parole to remain thereon until the expiration of his sentence. It could therefore be argued that Petitioner's injury ceased to be continuing and present. However, prior to the revocation of his first parole Petitioner's sentence expiration would have been

    March 7, 1978. Because his parole was revoked and Respondent did not choose to credit him for time previously spent on parole, his current sentence expiration has been extended to November 11, 1978. Therefore, Petitioner's injury has a continuing and adverse effect. Florida Department of Offender Rehabilitation v. Leroy Jerry and Florida Division of Administrative Hearings, Case No. FF-303, Opinion filed First District Court of Appeal, January 10, 1978.

    
    

20. It is therefore the conclusion of the Hearing Officer that Petitioner has demonstrated injury which is accompan ied by continuing, present adverse effects and thereby has shown himself to be substantially affected by the alleged rule.

    
    

21. The definition of "rule" set forth in Section 120.52(14), Florida Statutes, states that a "rule" is:

    
    

    " . . . . each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedure, or practice requirements of an agency "

    
    

    "Statement" is defined as "The thing stated." "State", in turn, is defined as "To set forth in words, esp. in a specific, definite, or formal way" and "To express or present in a non-verbal way." Webster's New World Dictionary, Second College Addition (1974). Thus, an agency statement may attain the character of a "rule" even though it has not been formally written and codified in some fashion. Rather, it is sufficient if the statement has been set forth in words in a specific, definite, or, perhaps even non-verbal, way. In this cause the practices and procedures of Respondent with regard to final parole revocation hearings, as discussed above, constitute an agency statement. They are quite definite and have been orally expressed by the agency head and expressed in written form in Respondent's Answers To Requests For Admissions and responded to interrogatories filed in this cause. These practices have been adhered to with relative inflexibility for several years which adherence and acts of the agency, in an extreme Situation such as this, may constitute a statement of the agency.

    
    

22. The practices and procedures set forth in paragraph 3, 4, 5, 7 and 8 above are of general applicability for they apply to all final parole revocation hearings. Further, they implement the law by setting forth the manner in which Respondent performs its responsibilities imposed by Chapter 947, Florida Statutes, and Specifically Section 947.23, Florida Statutes, wherein Respondent is directed to conduct final revocation hearings. The subject agency statements describe the procedure and practice requirement of the Respondent for those final revocation hearings. Therefore, it is concluded that the practices and procedures referred to in paragraphs 3, 4, 5, 7 and 8 above constitute an agency statement of general applicability that implements Respondent's law and describes the procedure and practice requirements of Respondent and by so doing is a "rule" as defined by Chapter 120, Florida Statutes.

    
    

23. As set forth in paragraph 9 above, Respondent presently brings revocation charges against a parolee who has been charged with a criminal offense while on parole. Even though that parolee was found innocent in some manner by a criminal court of law, if Respondent finds that the terms and conditions of the parole were violated they may revoke the parole. Petitioner argues that this constitutes a rule and as such is invalid. Section 947.21(1), Florida Statutes, states that "[a] violation of the terms of parole may render the parolee liable to arrest and a return to prison to serve out the term for

    which he was Sentenced." In considering a similar question involving the revocation of probation based on facts which had not been sufficient to convince a jury to convict the probationer on criminal charges, the Supreme Court of Florida found such a revocation proper, noting that the ultimate facts necessary to convict for a criminal offense and the ultimate facts necessary to establish a violation of probation are not the same. Russ v. State, 313 So.2d 758 (1975). Thus, it appears that the action of Respondent in bringing such revocation charges and in some cases revoking parole in such circumstances is merely compliance with the law rather than a statement implementing, interpreting or prescribing law or one which describes the organization, procedure or Practice requirements of the agency. For that reason Petitioner has failed to establish that the actions of Respondent in bringing such revocation charges constitute a rule as defined by Chapter 120, Florida Statutes.

    
    

24. Petitioner has failed to establish that it is the stated intent and practice of Respondent to issue final orders affecting substantial interests which do not include findings of fact and conclusions of law separately stated. Petitioner's evidence did, perhaps, establish that there are deficiencies in that regard with some of Respondent's final orders. Such a deficiency, however, is something to be dealt with on an individual basis and does not achieve the status of a rule as defined in Chapter 120, Florida Statutes.

    
    

25. In adopting a new Administrative Procedure Act, the Florida legislature in Section 120.72(1), Florida Statutes, states that:

    
    

    "[t]he intent of the Legislature in enacting this complete revision of chapter 120, Florida Statutes, is to make uniform the rulemaking and adjudicative procedures used by the administrative agencies of this state.

    To that end, it is the expressed intent of the Legislature that the provisions of this act shall replace all other provisions in the Florida Statutes, 1973, relating to rulemaking, agency orders, administrative adjudication, or judicial review of administrative action Chung Ling Yu v.

    Criser, 330 So.2d 198 (1st DCA).

    
    

    Chapter 120, Florida Statutes, sets forth in detail the rights of a party in formal proceedings and informal proceedings in which the substantial interests of that party are determined by an agency. Petitioner herein is a party as that term is defined Section 120.52(10), Florida Statutes, and his substantial interests, revocation of parole, are determined by the Respondent agency. No exemption or implied exemption of the Florida Parole and Probation Commission from the requirements of the new Administrative Procedure Act is found in Chapter 120, Florida Statutes. The final parole revocation hearings which are the subject of the alleged rules challenged in this proceeding are clearly for the purpose of adjudicating the rights of the parolees therein. Respondent argues that the due process rights of parolees do not fall within the parameters of Chapter 120, Florida Statutes, but rather are prescribed by case law. While the Hearing Officer acknowledges that both federal and state case law may define the minimum due process requirement applicable to the revocation of parole, that case law does not preclude the extension of greater rights or different rights, so long as they are cumulative to parolees, by statute. That would appear to be the situation in this case in the absence of any exemption of the Respondent agency from the requirements of Chapter 120, Florida Statutes. Therefore, it is

    the conclusion of the Hearing Officer that with regard to the adjudicative procedures set forth in Chapter 120, Florida Statutes, the Respondent agency is not exempt and those procedures apply to final parole revocation hearings. It is further specifically noted that Section 947.071, Florida Statutes, states unequivocally that "It is the intent of the Legislature that all rule-making procedures by the [Parole and Probation Commission] shall be conducted pursuant to the Florida Administrative Procedure Act, chapter 120." Thus the legislature has removed from doubt its intention that the Respondent must comply with the rulemaking requirements of Chapter 120, Florida Statutes.

    
    

26. Petitioner argues Persuasively that the practices and procedures of the Respondent in the conduct of final parole revocation hearings which are here at issue conflict with the requirement of Chapter 120, Florida Statutes, and therefore, to the extent those practices and Procedures constitute rules they are invalid. In support of Petitioner's position it is noted, for example, that Section 120.58(1)(e), states that:

    
    

    "If a majority of those who are to render the final order have not heard the case or read the record, a decision adverse to a party other than the agency itself shall not

    be made until a proposed order is served upon the parties and they are given an opportunity to file exceptions and present briefs and oral arguments to those who are to render the decision. The proposed order shall contain necessary findings of fact and conclusions of law and a reference to the source of each.

    The proposed order shall be prepared by the individual who conducted the hearing, if available, or by one who has read the record. The parties by written, stipulation may waive compliance with this paragraph.

    
    

    It is readily seen from the Practices and procedures of the Respondent which the Hearing Officer has concluded herein are rules and which are set forth in paragraphs 3, 4, 5, 7 and 8 above, that Respondent violates this requirement of Chapter 120. It is patent that a majority of those who render the final order do not hear the case nor read the record in single member hearings and may not have done so in majority member hearings. Yet, in the event they decide against the parolee, they do not prepare a proposed order in the manner prescribed and do not give an opportunity to the parolee to file exceptions and present briefs and oral arguments to the Commission. Section 120.57(1)(b)7, Florida Statutes, states that "Findings of fact shall be based exclusively on the evidence of record and on matters officially recognized." Yet, the Respondent Commission in the entry of its final order, as a matter of practice, relies on matters outside the record, which is defined in Section 120.57(1)(b)5. Respondent argues that they rely on the record in determining guilt and only go outside the record to determine if there are mitigating circumstances which would warrant continuing parole or giving credit for street time even though there had been a violation of the parole conditions. It appears to the Hearing Officer that in making such determinations there would necessarily at times be findings of fact necessary to such determinations and nowhere in Chapter 120, Florida Statutes, does there appear this dichotomy in the source of evidence which can be relied upon for the entry of a final order.

27. While these deficiencies with regard to the requirements of Chapter 120, Florida Statutes, in Respondent's Practices and procedures in final revocation hearings which have found to be rules herein might be sufficient to support a conclusion that they are invalid because they fall outside the statutory authority as set forth in Chapter 120, it is not necessary to reach such a conclusion in order to dispose of this proceeding. As confirmed by Section 947.071, Florida Statutes, the Respondent must comply with all rulemaking procedures set forth in the Administrative Procedure Act, Chapter 120, Florida Statutes. Section 120.54, Florida Statutes, sets forth in detail the procedures which must be complied with for the adoption, amendment, or repeal of any rule, with certain exceptions not here pertinent. Failure to comply with these procedures results in a rule which is an invalid exercise of delegated legislative authority, Department of Administration v. Patricia B. Harvey, et al., Case No. EE-131 and Department of Administration v. Patricia B. Harvey, et al., Case No. FF-168, Opinion filed First District Court of Appeal, December 27, 1977. The facts in this cause establish that the Practices and procedures set forth in Paragraphs 3, 4, 5, 7 and 8 above which have been found to be rules as defined by Chapter 120, Florida Statutes, have not been promulgated in accordance with Section 120.54, Florida Statutes. Therefore, for that reason alone, it must be concluded that they are an invalid exercise of delegated legislative authority.

ORDER

Consistent with the foregoing Findings of Fact and Conclusions of Law the Hearing Officer hereby finds that the Practices and Procedures set forth in Paragraphs 3, 4, 5, 7 and 8 above are rules and as such are invalid because of the failure of Respondent to properly adopt them pursuant to Section 120.54, Florida Statutes. The Hearing Officer further finds that the act of Respondent in bringing revocation charged against a parolee who has been charged with a criminal offense while on parole does not, in itself, constitute a rule.

DONE and ORDERED this 8th day of February, 1978, in Tallahassee, Florida.

CHRIS H. BENTLEY

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 8th day of February, 1978.

COPIES FURNISHED:

Richard Belz, Esquire Florida Legal Services, Inc. Prison Project

2614 S.W. 34th Street Gainesville, Florida 32608

Carolyn M. Snurkowski, Esquire General Counsel

Florida Parole and Probation Commission 1117 Thomasville Road

Tallahassee, Florida 32303

Carroll Webb, Executive Director Administrative Procedure Committee

120 Holland Building Tallahassee, Florida 32304

Ms. Liz Cloud Department of State

403 E. Gaines Street Tallahassee, Florida 32304

Docket for Case No: 77-000728RX

Orders for Case No: 77-000728RX