STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLES T. SCOTT, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2458RX

) FLORIDA PAROLE AND PROBATION ) COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

The Petitioner, Charles T. Scott, has filed a "Petition for Administrative Determination of Invalidity" under the provisions of Section 120.56, Florida Statutes. Petitioner is seeking a determination that various rules of the Respondent, Florida Parole and Probation Commission, constitute invalid exercises of delegated legislative authority. The Director of the Division of Administrative Hearings entered an Order of Assignment on October 14, 1981, and the final hearing was scheduled and conducted on November 12, 1981.

At the final hearing, the Petitioner testified as a witness on his own behalf. Jay D. Farris, the Parole and Probation Commission's Director of Planning and Evaluation, testified on behalf of the Respondent. Hearing Officer's Exhibit 1, Petitioner's Exhibit 1, and Respondent's Exhibits 1, 2 and

3 were offered into evidence and were received. The issues in this proceeding are whether Parole and Probation Commission Rules 23-16, 23-16.051, 23-19.01, 23-19.02, 23-19.03, and 23-19.04, Florida Administrative Code, as they were in existence at the time that the Respondent's presumptive parole release date was set, constitute invalid exercises of delegated legislative authority.

FINDINGS OF FACT

1. The Petitioner is an inmate incarcerated at the Florida State Prison in Starke, Florida. In accordance with plea arrangements, Petitioner was convicted of numerous charges of robbery, burglary, sexual battery, and false imprisonment in Circuit Courts in Dade and Broward Counties, Florida. He received numerous and various prison sentences, all of which were to run concurrently with a 99- year sentence. Assuming that Petitioner is eligible for statutory gain time for good behavior, his sentence would expire sometime prior to the year 2080.

   
   

2. During July, 1981, Petitioner was interviewed by an examiner of the Florida Parole and Probation Commission for the purpose of establishing a presumptive parole release date (PPRD). Under Parole and Probation Commission rules then in effect, the examiner was to consider the severity of the offense committed by the Petitioner, calculate a "salient factor score" and apply various aggravating or mitigating circumstances in determining a recommended PPRD. The examiner classified the offense as "greatest (most serious III);" determined a salient factor score of nine based upon prior convictions, total time served, the existence of burglary as a present offense of conviction, the

   number of prior incarcerations, and the Petitioner's age of first commitment; and applied numerous aggravating circumstances based upon the nature of various of the charges that had been lodged against Petitioner. The examiner recommended a PPRD of March 4, 2092. On August 26, 1981, the Parole and Probation Commission considered the examiner's recommendation and affirmed it. Petitioner is now pursuing a review of the PPRD before the Commission.

   
   

3. In promulgating the rules which were in effect when Petitioner'S PPRD was determined, the Parole and Probation Commission sought to isolate factors that would predict the probability of a successful parole outcome. There is no perfect predictive device on a case-by-case basis. An inmate's past behavior and statistical relationships that can be isolated provide the best predictive devices. The Commission's C utilization of a system which first classifies the offense characteristics, then applies a salient factor score and aggravating or mitigating circumstances is designed to set a presumptive parole release date based on an inmate's past behavior and based upon the statistical relationships that have been found to exist. The evidence does not establish that the guidelines adopted by the Commission in its rules which were applied to the Petitioner are arbitrary, capricious or unreasonable.

   
   

4. The Parole and Probation Commission has amended the rules which were followed in the setting of the Petitioner's PPRD. The Petitioner continues to be affected, however, by the rules as they existed prior to the amendments because those rules provide the basis for his PPRD.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Section 120.56, Florida Statutes. Petitioner is substantially affected by the rules which were followed in the setting of Petitioner's PPRD.

   
   

6. Petitioner has claimed that the Respondent's rules violate the Constitutions of the United States and the State of Florida. Hearing Officers of the Division of Administrative Hearings lack authority to resolve constitutional challenges to existing rules. Department of Environmental Regulation v. Leon County, 344 So.2d 290, 295 (1 DCA Fla. 1977).

   
   

7. Numerous of the Petitioner's claims relate to the propriety of his PPRD as set by the Commission, rather than to the validity of the Commission's rules. For example, Petitioner contends that the kidnapping charges that were lodged against him cannot be considered as aggravating circumstances, as they were by the Commission's examiner and by the Commission, because he was not convicted of kidnapping. Similarly, Petitioner argues that during negotiations which resulted in a plea arrangement, he was assured that he would have a parole release date set within a specified period considerably sooner than March 4, 2092. He contends that it is improper for his release date to be set beyond the period that was specified during plea negotiations. These arguments and others advanced by Petitioner in connection with his specific PPRD have some logical appeal. They do not, however, relate in any way to the validity of the Commission's rules. A proceeding brought in accordance with Section 120.56, Florida Statutes, cannot serve as a mechanism for reviewing the case-by-case application of rules. See: Cookish v. Florida Parole and Probation Commission, DOAH Case No. 81-16-2OR (Order entered November 6, 1981). Administrative or judicial remedies exist for the Petitioner to test the validity of the PPRD that was set by the Commission. A Section 120.56 rule challenge proceeding is not the remedy.

8. Petitioner has challenged Commission Rule 23-19.01(5). The rule, as applied to Petitioner, provided:

   
   

   If present offense of conviction involved multiple separate offenses, the severity level shall be based on the most serious of the offenses, and the other offenses may be used as aggravating factors. This shall be applied to both consecutive and con- current sentences.

   
   

   Petitioner contends that the rule has the effect of rendering concurrent sentences identical to consecutive sentences, and that the rule therefore violates the Court's sentencing prerogatives. The contention is without merits. Nothing in the Commission's rules serves or could serve to extend an inmate's period of incarceration beyond the period of his sentence. Considering multiple separate offenses as aggravating factors merely allows the Commission to accurately predict the probability of successful parole based upon the best objective criteria that can be applied, that being the inmate's prior conduct.

   
   

9. Petitioner has challenged Commission Rule 23-19.02(2)(e) as it existed at the time that his PPRD was set. The rule provides:

   
   

   The Commission will establish a pre- sumptive release date in the usual manner even if said date exceeds the expiration date of a sentence. While this does not work to incarcerate the prisoner past the expiration of his sentence, said date will be utilized in any future assignments of presump- tive parole release dates.

   
   

   Obviously, setting a PPRD beyond the period of an inmate's sentence effectively renders parole nonexistent. In Petitioner's specific case, the PPRD is well beyond any conceivable life span. Nothing in Chapter 947, Florida Statutes, prohibits the Commission from adopting guidelines which would include a determination that there is little or no prospect for successful parole of an inmate. If such a determination is made, setting the PPRD as far off as legally permissible would appear appropriate. Setting the PPRD beyond the expiration date of the sentence merely has the effect of setting it on the expiration date of the sentence.

   
   

10. Petitioner has challenged Commission Rule 23-19.03. The rule, as applied to Petitioner, allows the Commission to consider factors that are not specifically included in its offense severity consideration and in its salient factor considerations. The rule provides numerous examples of aggravating and mitigating circumstances. The rule does serve to inject "subjective" criteria into a system which is designed to be "objective." It is not, however, beyond the scope of legislative authority. Sections 947.172(2) and (3) specifically allow "any other competent evidence relevant to aggravating and mitigating circumstances" to be considered in setting a PPRD.

11. Petitioner has made numerous assertions as to the unreasonableness, arbitrariness and capriciousness of the Commission's rules. In Agrico Chemical Company v. Department of Environmental Regulation, 365 So.2d 759, 763 (1 DCA Fla. 1978), the Court stated:

    
    

    A capricious action is one which is taken without thought or reason or irrationally. An arbitrary decision is one not supported by facts or logic, or despotic. Administrative discretion must be reasoned and based upon competent substantial evidence. Competent substantial evidence has been described as such evidence as a reasonable person would accept as ade- quate to support a conclusion.

    
    

    The requirement that a challenger

    [a party challenging the validity of an agency's rule] has the burden of demonstrating agency action to be arbitrary or capricious or an abuse of administrative discretion is a stringent one indeed. . .

    
    

12. Petitioner has not maintained his burden of establishing that the Respondent's rules are arbitrary, capricious or unreasonable. The Commission's rules were adopted in response to the Objective Parole Guidelines Act of 1978, Chapter 947, Florida Statutes. The Legislature expressed the intent of the chapter as follows: (Section 947.002)

    
    

    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.

    2. Objective parole criteria will be designed to give primary weight to the seriousness of the offender's present criminal offense and his past criminal record. In considering the risk of recidivism, practice has shown that

       the best predictor is prior record.

       
       

13. At Section 947.165(1), the Act provides in pertinent part as follows:

    
    

    The objective parole guidelines shall be developed according to an accept- able research method and shall be based on the seriousness of offense and the likelihood of favorable parole outcome. . .

14. The evidence reveals that the Commission's rules were designed to give primary weight to the seriousness of the offender's offense and his past criminal record. Acceptable research methods were utilized in developing the rules, and the seriousness of offense and the likelihood of favorable parole outcome are governing criteria under the rules. The Commission's rules are reasonably calculated to accomplish the legislative intent.

FINAL ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby,

ORDERED:

Petitioner has failed to establish that Florida Parole and Probation Commission Rules 23-16, 23-16.051, 23- 19.01, 2319.02, 23-19.03, and 23-19.04,

Florida Administrative Code, constitute invalid exercises of delegated legislative authority, and the Petition for Administrative Determination of Invalidity is accordingly dismissed.

DONE AND ORDERED this 18th day of December, 1981, in Tallahassee, Florida.

G. STEVEN PFEIFFER Assistant Director

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 December, 1891.

COPIES FURNISHED:

Mr. Charles T Scott #076553

Post Office Box 747 Starke, Florida 32091

Malcolm S. Greenfield, Esquire General Counsel

Florida Parole and Probation Commission

1309 Winewood Boulevard, Bldg. 6

Tallahassee, Florida 32301

Carroll Webb, Esquire Executive Director

Joint Administrative Procedures Committee

Room 120, Holland Building Tallahassee, Florida 32301

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

1802 The Capitol

Tallahassee, Florida 32301

Docket for Case No: 81-002458RX

Orders for Case No: 81-002458RX