STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ERNEST WALKER, )

)

Petitioner, )

)

vs. ) CASE NO. 83-3444RX

)

FLORIDA PAROLE AND )

PROBATION COMMISSION, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a public hearing in this cause on December 7, 1983, at Union Correctional Institution, Raiford, Florida.

APPEARANCES

For Petitioner: Gary M. Piccirillo

Authorized Representative

Lake City Community Correctional Center Post Office Box 777

Lake City, Florida 32055

Ernest Walker

Union Correctional Institution Post Office Box 221

Raiford, Florida 32083

For Respondent: Enoch J. Whitney, Esquire

General Counsel

Florida Parole and Probation Commission 1309 Winewood Boulevard, Building 6

Tallahassee, Florida 32301

Petitioner challenges the validity of Respondent's Rule 23-21.02(29), Florida Administrative Code, as an invalid exercise of delegated legislative authority. Petitioner's contentions are as follows:

1. The rule allows arbitrary and capricious agency action in parole

   cases;

   
   

2. The rule is unreasonable on its face since it defines any

   information as new information for the purpose of allowing the extension of a presumptive parole release date (PPRD) previously established;

   
   

3. The rule is vague and allows irrational and unreasonable agency action in parole cases; and

4. The rule restricts the legislature's intent of establishing a fair and objective means of determining parole eligibility under Florida's Objective Parole Guidelines Act of 1978.

Respondent contends that Petitioner lacks standing to seek a determination of the invalidity of Rule 23-21.02(29), because he has failed to demonstrate that but for the adoption of the rule his PPRD could not have been extended by Respondent; Petitioner lacks standing because he is utilizing the rule challenge proceeding to collaterally attack the extension of his PPRD while simultaneously pursuing an administrative appeal; and finally, that the rule constitutes a valid exercise of delegated legislative authority.

Final hearing in this cause was scheduled for December 7, 1983, by Notice of Hearing dated November 14, 1983. A Prehearing Stipulation was received into evidence without objection as Hearing Officer's Exhibit 1. Also received into evidence without objection were Respondent's Exhibits 1, 2, and 3. Petitioner's Exhibits 1 through 5 were also received into evidence.

Respondent has submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that those proposed findings of fact are not contained in this order they have been specifically rejected as being either irrelevant to the issues involved in this proceeding, or as not having been supported by evidence of record. Petitioner has made no posthearing filing.

FINDINGS OF FACT

1. At all times material hereto Petitioner, Ernest Walker, was an inmate incarcerated at Union Correctional Institution. Respondent is a state agency charged by law with determining what persons may be placed on parole, fixing the timing conditions of parole, and determining violations of parole.

   
   

2. Respondent is charged by Section 947.16, Florida Statutes, with the responsibllity of interviewing inmates, and establishing presumptive parole release dates, and thereafter reviewing those dates. Pursuant to its statutory charge, Respondent conducted an interview of Petitioner, Ernest Walker, and established his original presumptive parole release date to be June 21, 1988, by action certified by Respondent on September 2, 1981. Subsequently, in special Commission action taken on October 17, 1983, Petitioner's PPRD was extended to June 21, 2008, based upon the receipt of a mental health status report, which, according to the record in this cause, was treated as "new information" not available at the time the Petitioner's initial PPRD was established.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

4. Section 947.07, Florida Statutes, empowers Respondent to ". . .make such rules and regulations as it deems best for its governance. . ."

   
   

5. Section 947.16 establishes a procedure whereby Respondent is required to interview inmates whose sentence or accumulative sentences total 12 months or more in order to establish a presumptive parole release date. Section 947.16(4), Florida Statutes, provides as follows:

   Within 90 days after 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. (Emphasis added.)

   
   

6. Pursuant to its statutory mandate, Respondent has promulgated Rule 23- 21.02(29), Florida Administrative Code, which provides as follows:

   
   

   New Information means knowledge acquired subsequent to the initial interview or the establishment of the Presumptive Parole Release Date.

   
   

7. It is specifically concluded, as a matter of law, that by virtue of the fact that Respondent's definition of "new information" in challenged Rule 23.21.02(29), Florida Administrative Code, neither adds to nor detracts from the definition of that term as contained in Section 947.16(4), Florida Statutes, the challenged rule constitutes a permissible interpretation of law by the agency. Department of Health and Rehabilitative Services v. Framat Realty, Inc., 407 So.2d 238 (Fla. 1st DCA 1981); DeDakis v. Florida Real Estate Commission, 388 So.2d 22 (Fla. 1st DCA 1980). Accordingly, it is

ORDERED:

That the relief sought by Petitioner be, and the same is hereby, denied, and this proceeding dismissed.

DONE AND ENTERED this 30th day of April, 1984, at Tallahassee, Florida.

WILLIAM E. WILLIAMS

Hearing Officer

Division of Administrative Hearings Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 30 day of April, 1984.

COPIES FURNISHED:

Gary M. Piccirillo Lake City Community

Correctional Center Post Office Box 777

Lake City, Florida 32055

Ernest Walker

Union Correctional Institution Post Office Box 221

Raiford, Florida 32083

Enoch J. Whitney, Esquire General Counsel

Florida Parole and Probation Commission

1309 Winewood Boulevard

Building 6

Tallahassee, Florida 32301

Anabel P. Mitchell, Chairman Florida Parole and Probation

Commission

1309 Winewood Boulevard

Building 6

Tallahassee, Florida 32301

Liz Cloud, Chief

Bureau of Administrative Code Department of State

The Capitol, LL04 Tallahassee, Florida 32301

Carroll Webb, Executive Director Joint Administrative procedures

Committee

120 Holland Building Tallahassee, Florida 32301

Docket for Case No: 83-003444RX

Orders for Case No: 83-003444RX