STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STEVEN HENRY ROBERTS )

)

Petitioner, )

)

vs. ) CASE NO. 82-042RX

) FLORIDA PAROLE AND PROBATION ) COMMISSION )

)

Respondent. )

)

RECOMMENDED ORDER

The Petitioner, Steven Henry Roberts, filed a "Petition for Administrative Hearing" under the provisions of Section 120.56, Florida Statutes. Petitioner is seeking a determination that Florida Parole and Probation Commission Rules 23-19.01(6) and 23-19.05, Florida Administrative Code, constitute invalid exercises of delegated legislative authority. An Order of Assignment was entered on July 11, 1981. The final hearing was conducted on February 8, 1982, at Sumter Correctional Institution, Bushnell, Florida.

At the final hearing, Jay D. Farris, the Director of Planning and Evaluation for the Parole and Probation Commission, testified on behalf of the Commission. Petitioner's Exhibit 1 and Respondent's Exhibits 1 through 9 were received into evidence. The parties have submitted post-hearing legal memoranda. The Respondent's memorandum is in the form of findings of fact and conclusions of law. The findings and conclusions have been adopted only to the extent that they are expressly set out in the Findings of Fact and Conclusions of Law which follow. They have been otherwise rejected as contrary to the evidence, not supported by the evidence, irrelevant to the issues, or legally erroneous.

FINDINGS OF FACT

1. Petitioner is a prisoner incarcerated at Sumter Correctional Institution near Bushnell, Florida. Petitioner was convicted in Dade County of the crime of attempted rape and sentenced to serve a fifteen-year prison term.

   
   

2. Petitioner was interviewed by an examiner of the Parole and Probation Commission on September 8, 1980, 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 gravity of the offense for which the Petitioner was sentenced, establish a "salient factor score," and consider any aggravating or mitigating circumstances. The examiner classified the attempted rape conviction as "Greatest (Most Serious--I)." Taking into account the number of prior convictions, the number of prior incarcerations, the total time Petitioner had served in prison, Petitioner's age at the first conviction, the number of parole violations, the number of escapes, and whether burglary was the offense of conviction, the examiner set the salient factor score at 2. Parole and Probation Commission rules in effect at the time that Petitioner's PPRD was

   considered included guidelines for the time a prisoner should serve before being released on parole. The guideline range for the offense characteristic "Greatest (Most Serious--I)" with a salient factor score of 2 was from fifty- eight to seventy-nine months. The examiner recommended that Petitioner's PPRD be set at the outer limit of the guideline range, and that it be aggravated an additional six months because of another offense. The examiner thus recommended that the PPRD be set for September 18, 1984. The Commission examined the recommendation and considered the aggravating factors to be more severe than they had been by the examiner and set the PPRD at September 22, 1985.

   Petitioner sought an administrative review of the PPRD, but was unsuccessful.

   
   

3. The Objective Parole Guidelines Act of 1978, Chapter 947, Florida Statutes, directs the Parole and Probation Commission to establish objective criteria for establishing parole release dates for inmates. The two primary considerations that the Commission determined should go into setting a parole release date were the probability of a favorable outcome on parole and offense severity. The Commission boiled factors relating to probability of a favorable outcome down to seven. These were dubbed in the Commission's rules as the "salient factors." They are the number of prior convictions, the number of prior incarcerations, total time served in years, the age at first commitment, the number of prior parole revocations, the number of prior escapes, and whether burglary is the present offense of conviction. Consideration of these factors under the Commission's rules results in the setting of a "salient factor score."

   
   

4. In deciding how to rate the severity of different offenses, the Commission utilized its own collective judgment. Each Commissioner ranked various offenses in terms of severity as he or she perceived it. These rankings resulted in a consensus that was codified into a rule. Every possible offense was not given an offense characteristic rating. Various potential crimes of "attempt," for example, were not individually rated. Instead, the Commission determined to rate attempts as follows: [Rule 23-19.01(6), Florida Administrative Code]

   
   

   Conspiracies, Solicitations, and Attempts shall be rated for Guideline purposes according to the underlying offense behavior if such behavior

   was consummated. If the offense

   was not consummated, the conspiracies, solicitations or attempts shall be

   rated one severity offense characteristic below the offense which was not consummated.

   
   

5. Through its Rule 23-19.05, Florida Administrative Code, the Parole and Probation Commission adopted guidelines in the form of a table to establish the typical total time in months to be served in jail before release on parole. The guidelines are based upon the offense characteristic or severity and the salient factor score. The offense of sexual battery is rated under four different offense characteristics. Under the offense characteristic "Very High," sexual battery is included if it was committed "with force not likely to cause serious bodily injury; victim over 11." Under the offense characteristic "Greatest (Most Serious--II)," sexual battery is listed as follows:

   
   

   Sexual Battery (threat of force likely to cause serious bodily harm; victim physically helpless to resist; use of

   incapacitating narcotics upon victim without victim's knowledge or consent; familial, custodial, or official authority relationship with a victim over 11 but under 18; victim is mentally defective

   and the inmate knew or had reason

   to know of the mental condition. All victims in the foregoing categories are over 11 years of age); incest.

   
   

6. Under the offense characteristic "Greatest (Most Serious--III) it is listed: "Sexual Battery (use of force likely to cause serious bodily harm. Victim over 11 years of age)." Under the characteristic "Greatest (Most Serious-

   -IV)," it is listed: "Sexual Battery; offender 18 or over, victim 11 or under." In Note 6 which follows the table, attempts are mentioned as follows:

   
   

   Conspiracies, Solicitations, and Attempts shall be rated for guideline purposes according to the underlying offense behavior if such behavior was consummated. If the offense is unconsummated, the conspiracies,

   solicitations, or attempts shall be rated one severity offense characteristic below the offense which was not consummated.

   
   

7. The Petitioner's offense characteristic was established by the Parole and Probation Commission as "Greatest (Most Serious--I)." This was based upon a finding that the sexual battery attempted by Petitioner was done with a threat of force likely to cause serious bodily harm. If the rape had been consummated, the attempt offense would have been rated "Greatest (Most Serious--II)" by the Commission. Since it was not consummated, the attempt was rated one severity offense characteristic below the unconsummated offense.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 120.56, Florida Statutes.

   
   

9. Petitioner contends that Parole and Probation Commission Rules 23- 19.01(6) and 23-19.05, Florida Administrative Code, are invalid exercises of delegated legislative authority because they do not establish objective means of setting parole release dates for inmates convicted of attempt offenses, and because the rules are unreasonable. The Petitioner has the burden of establishing the invalidity of the rules. Agrico Chemical Co. v. Department of Environmental Regulation, 365 So.2d 759 (1 DCA Fla. 1978). There is no evidence in this matter from which it could be concluded that the Commission's rules are not objective, nor that they are arbitrary and capricious. The Commission's rules result in attempt offenses being treated more leniently for the purpose of setting a presumptive parole release date than the underlying offense if the underlying offense was not consummated. While it can be argued that attempt offenses should be treated more leniently than merely one offense severity rating lower than the underlying offense, the policy chosen by the Commission is a reasonable and logical one. Such an argument, even if it were considered quite persuasive, would rise only to the level of establishing that the Commission could have adopted policies distinct from those that it did adopt.

FINAL ORDER

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

ORDERED:

That the Petition for Administrative Hearing filed by the Petitioner, Steven Henry Roberts, is hereby dismissed.

DONE AND ORDERED this 18th day of March, 1982, 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 March, 1982.

COPIES FURNISHED:

Mr. Steven Henry Roberts #A044449

Sumter Correctional Institution Post Office Box 667 B-136 Bushnell, Florida 33513

Malcolm Greenfield, Esquire General Counsel

Parole and Probation Commission 1309 Winewood Boulevard, Bldg. 6

Tallahassee, Florida 32301

Carroll Webb, Esquire Executive Director

Joint Administrative Procedures Committee

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: 82-000042RX

Orders for Case No: 82-000042RX