STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DOUGLAS L. ADAMS, DANIEL P. HULL, ) SEIMORE KEITH, and RONNIE McKANE )
)
Petitioner, )
)
vs. ) CASE NO. 81-2498RX
) FLORIDA PAROLE AND PROBATION ) COMMISSION, )
)
Respondent. )
)
FINAL ORDER
The Petitioners have filed a "Petition for Administrative Determination" under the provisions of Section 120.56, Florida Statutes. Petitioners are seeking a determination that Florida Parole and Probation Commission Rule 23- 21.09, Florida Administrative Code, constitutes an invalid exercise of delegated legislative authority. The Director of the Division of Administrative Hearings entered an Order of Assignment on October 16, 1981. The final hearing was originally scheduled to be conducted on November 12 but was continued to accommodate the parties' schedules and conducted on December 4, 1981.
Each of the Petitioners testified as witnesses on their own behalf.
Petitioners called the following additional witnesses: Henry P. Zeigler, Jr., a Librarian I employed by the Florida Department of Corrections at Polk Correctional Institution; and Roderick Childers, an inmate at Polk Correctional Institution. Jay D. Farris, the Florida Parole and Probation Commission's Director of Planning and Evaluation, testified on behalf of the Respondent.
Petitioners' Exhibits 1 through 7, and Respondent's Exhibits 1 through 16 were offered into evidence and received. The parties have submitted post-hearing legal memoranda.
Petitioners contend that Florida Parole and Probation Commission Rule 23- 21.09, Florida Administrative Code, constitutes an invalid exercise of delegated legislative authority because it was not properly promulgated, because it violates constitutional prohibitions, and because it is contrary to legislative intent. Respondent contends that the rule constitutes a valid exercise of delegated legislative authority.
FINDINGS OF FACT
The Respondent, Florida Parole and Probation Commission, adopted revised rules of practice and procedure which became effective on September 10, 1981. Among these is Rule 23-21.09, Florida Administrative Code, which establishes "matrix time ranges" that are used in determining presumptive parole release dates for persons who are serving prison terms. In determining presumptive parole release dates, the Respondent's rules require that a "salient factor score" be determined based upon such factors as the number of prior criminal convictions, the number of prior incarcerations, total time served in
prisons, the inmate's age at the time of the offense which led to the first incarceration, the number of probation or parole revocations, the number of prior escape convictions, and whether burglary or breaking and entering is the present offense of conviction. The degree or severity of the present offense of conviction is then determined. The Respondent's Rule 23-21.09 sets guidelines for time ranges for presumptive parole release dates depending upon the severity of the present offense of conviction and the salient factor score. The more severe the present offense of conviction, the longer will be the period before the presumptive parole release date. Similarly, given the severity of the offense, the higher the salient factor score the longer will be the period before the presumptive parole release date. The rule replaced a rule which set different matrix time ranges. The new rule generally sets longer time ranges, but this is not uniformly true.
The Petitioner, Seimore Keith, is an inmate presently incarcerated at Polk Correctional Institution, Polk City, Florida. Polk Correctional Institution is a facility maintained by the Florida Department of Corrections. Petitioner Keith was convicted of grand theft in July, 1980, and was sentenced to serve five years in prison. The conviction was the result of a guilty plea which was entered in accordance with a plea bargain. During plea negotiations, Petitioner Keith was advised that his presumptive parole release date under Florida Parole and Probation Commission rules would require that he serve no more than 25 months in prison. At the time that Petitioner Keith's presumptive parole release date was set by the Respondent, the new Rule 23-21.09 had come into effect, and the Petitioner's presumptive parole release date was set to require that he serve 32 months in prison.
The Petitioner, Ronnie McKane, is presently incarcerated at Polk Correctional Institution. He was convicted of the offense of armed robbery in February, 1981. Under rules in effect when he was sentenced, which was prior to the adoption of Rule 23-21.09, Petitioner McKane's presumptive parole release date would, if the guidelines were followed, have been set sooner than under Rule 23-21.09. The new rule was applied by Respondent in setting McKane's presumptive parole release date.
The Petitioner, Daniel P. Hull, is presently incarcerated at Polk Correctional Institution. He was convicted in September, 1971, of the offense of robbery and sentenced to serve ten years in prison. He was paroled in 1974, but was reincarcerated as a result of a parole violation in 1976. In 1977 he escaped, and was recaptured in January, 1981. On June 1, 1961, Petitioner Hull was convicted of the offense of escape and sentenced to serve nine months.
Under the rules in effect when he was sentenced, which was prior to the adoption of Rule 23-21.09, Hull's presumptive parole release date would, if the guidelines were followed, have been set sooner than under Rule 23-21.09. The new rules were applied by Respondent in setting Hull's presumptive parole release date, and it has been set subsequent to the expiration of his sentence. Hull will therefore be released when his sentence expires in March, 1982.
The Petitioner, Douglas L. Adams, was convicted of the offenses of possession of marijuana and uttering a forged instrument, and sentenced in February, 1981, to two consecutive five-year sentences. Under the rules in effect when Adams was sentenced, which was prior to the adoption of Rule 23- 21.09, Adams' presumptive parole release date would, if the guidelines were followed, have been set sooner than under Rule 23-21.09. The new rule was applied by the Respondent in setting Adams' presumptive parole release date.
During 1980, the Respondent directed its staff to begin considering proposed changes to its rules of practice and procedure. Various proposals were considered, and by September, 1980, a proposed rule package had been developed. The Respondent directed its staff to submit the proposed rule package to the Governor and members of the Cabinet, various pertinent legislators, county and circuit judges, prosecutors and public defenders, superintendents of each prison in the State, and to members of the Supreme Court and the district courts. The Commission opted to conduct various workshops throughout the State, and to invite all interested persons to share their input. Notices of the workshops were published in the Florida Administrative Weekly. The workshops were conducted, and the Commission commenced formal rule-making proceedings. Notice of rulemaking was published in the Florida Administrative Weekly, and hearings were scheduled. Notice of the formal rulemaking proceedings was also published in the St. Petersburg Times, the Pensacola Journal, the Tallahassee Democrat, the Orlando Sentinel-Star, and the Florida Times-Union. Persons who had requested specific notification were provided it. In response to this notice, the Respondent received considerable written input, and oral presentations were made at hearings that were conducted. The final hearing in the rule-making proceeding was conducted on June 19, 1981, and the rules, including Rule 23- 21.09, were thereafter adopted effective September 10, 1981.
Notice of the proposed rule changes and of the formal rulemaking proceeding was not specifically disseminated to inmates at Florida's prisons. The proposed rules were for- warded to the superintendent of each facility. At some of the institutions the proposed rules were apparently posted. All persons who requested copies of the proposed rules from the Florida Parole and Probation Commission were provided them. Numerous prisoners and organizations that represent prisoners made input during the various states of the rulemaking proceeding. None of the Petitioners in this matter were specifically noticed of the rulemaking proceeding. One of the Petitioners had heard that rules were being proposed, and requested copies of them from members of the Legislature or from Department of Corrections personnel. None of the Petitioners requested copies of the proposed rules from the Respondent or anyone connected with the Respondent.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this proceeding. Section 120.56, Florida Statutes.
Petitioners contend that the Respondent's Rule 23-21.09 constitutes an invalid exercise of delegated legislative authority because it was improperly promulgated. Petitioners assert that inadequate notice of the rulemaking proceeding was published. Section 120.54(1), Florida Statutes, provides in pertinent part:
Prior to the adoption, amendment, or repeal of any rule an agency shall
give notice of its intended action, setting forth a short and plain explanation of the purpose and effect of the proposed rule, the specific legal authority under which its adoption is authorized, and a summary of the estimate of the economic impact of the proposed rule on all persons affected by it.
Except as otherwise provided
in this paragraph, the notice shall be mailed to the committee, to all persons named in the proposed rule, and to all persons who have made requests of the agency for advance notice of its proceedings at least 14 days prior to such mailing. The agency shall also give such notice as is prescribed by rule to those particular classes of persons to whom the intended action is directed.
The notice shall be published
in the Florida Administrative Weekly not less than 21 days prior to the intended
action ... the proposed rule shall be avail- able for inspection and copying by the
public at the time of publication of notice.
Respondent's efforts to notify interested persons of its rule- making proceedings exceeded these statutory requirements. Notice was published in the Florida Administrative Weekly as required. Persons who requested advance notice of the proceedings were provided it. It does not appear that there are any specific rules governing who should be provided with copies of rules of the Respondent, but the Respondent made the additional efforts of providing notice to criminal law enforcement personnel, and prison superintendents.
Additionally, notice of the rulemaking proceedings was published in four newspapers of broad circulation.
Petitioners contend that Rule 23-21.09 constitutes an invalid exercise of delegated legislative authority because it constitutes an ex post facto law in violation of federal and state constitutional prohibitions. A hearing officer of the Division Administrative Hearings has no jurisdiction to resolve claims that an existing rule is unconstitutional. Department of Environmental Regulation v. Leon County, 344 So.2d 297 (1 DCA Fla. 1977)
At least two of the Petitioners contend that the rule should not have been applied to them because they were advised during negotiations which led to guilty pleas of the existence of rules which set guidelines for the setting of presumptive parole release dates in advance of what the guidelines provide under the new rule. This contention relates to the validity of the guilty pleas. A Section 120.56 rule challenge proceeding is not an appropriate remedy for resolution of it.
Petitioners contend that the rule is invalid because it sets guidelines for setting a presumptive parole release date based in part upon a "recidivist criminal factor." Petitioners contend that it is within the judicial prerogative to consider whether a person convicted of a crime should be given a longer or shorter sentence based upon prior offenses, and that applying such a factor in determining a presumptive parole release date is an encroachment upon judicial authority. This contention is without merit. Nothing in the Objective Parole Guidelines Act of 1978, Chapter 947, Florida Statutes, prohibits the consideration of prior offenses as aggravating factors in determining a presumptive parole release date. Such consideration does serve to further the legislative intent of the chapter. Section 947.002, Florida Statutes, provides:
The present system lacks objective criteria for paroling and, thus, is subject to allegations of arbitrary and capricious release and, therefore, paten-
trial abuses. It is the intent of this act to establish an objective means for deter- mining and establishing parole dates for inmates.
Objective parole criteria will be designed to give primary weight to the seriousness of the offender's present criminal record. In considering the risk of recidivism, practice has shown that the best predictor is prior record.
Considering prior criminal convictions as aggravating factors serves this legislative mandate.
Petitioners have contended that Rule 23-21.09 constitutes an invalid exercise of delegated legislative authority because it is arbitrary and capricious. They have failed to satisfy their burden of proof as to this contention. Agrico Chemical Company v. Department of Environmental Regulation, 365 So.2d 759 (1 DCA Fla. 1978).
FINAL ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby,
That the petition for administrative determination filed by the Petitioners Douglas L. Adams, Daniel P. Hull, Seimore Keith, and Ronnie McKane is hereby dismissed.
DONE and ORDERED this 8th day of January, 1982, in Tallahassee, Leon County, Florida
G. STEVEN PFEIFFER 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 January, 1982.
COPIES FURNISHED:
Douglas L. Adams #031200 Malcolm Greenfield, Esquire Mail Box L-41 General Counsel
Post Office Box 488 Florida Parole and Probation Polk City, Florida 33868 Commission
1309 Winewood Boulevard, Building 6
Seimore Keith #078273 Tallahassee, Florida 32301 Post Office Box 488
Polk City, Florida 33868 Carroll Webb, Executive Director
Administrative Procedures Committee Daniel P. Hull #032209 Room 120, Holland Building
Mail Box L-41 Tallahassee, Florida 32301 Post Office Box 488
Polk City, Florida 33868 Ms. Liz Cloud
Department of State Ronnie McKane #162799 Administrative Code Bureau Mail Box L-41 Room 1802, The Capitol
Post Office Box 488 Tallahassee, Florida 32301 Polk City, Florida 33868
| Issue Date | Proceedings |
|---|---|
| Jan. 08, 1982 | CASE CLOSED. Final Order sent out. |
| Issue Date | Document | Summary |
|---|---|---|
| Jan. 08, 1982 | DOAH Final Order | Challenged rule was not improperly promulgated and was not an invalid exercise of delegated legislative authority. Dismiss. |
