STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAUL R. LAYTON, )

)

Petitioner, )

)

v. ) CASE NO. 84-0209RX

)

STATE OF FLORIDA, PAROLE )

AND PROBATION COMMISSION, )

)

Respondent. )

)

FINAL ORDER

A formal hearing was held in this matter before Marvin E. Chavis, duly designated Hearing Officer of the Division of Administrative Hearings, on February 16, 1984, at Tomoka Correctional Institution, Daytona Beach, Florida.

APPEARANCES

For Petitioner: Paul R. Layton, pro se

D.C. No. 040729 3950 Tiger Bay Road

Daytona Beach, Florida 32014

Randall C. Mumper Qualified Representative 3950 Tiger Bay Road

Daytona Beach, Florida 32014

For Respondent: Enoch J. Whitney, Esquire

General Counsel

Florida Parole and Probation Commission 1309 Winewood Boulevard, Building 6

Tallahassee, Florida 32301 ISSUES AND BACKGROUND

This case arises out of a petition filed by Paul R. Layton challenging the validity of rule 23-21.09, Florida Administrative Code. At the formal hearing, the Petitioner narrowed his challenge to only that subsection of Rule 23-21.09 which contains the matrix time range for setting the presumptive parole release date. The specific provision challenged then is Rule 23 21.09(5), Florida Administrative Code. At the final hearing, the Petitioner called Mr. Jay Dee Farris as its only witness. The Petitioner offered and had admitted composite Exhibit 1A - 1P and Petitioner's Exhibit 2. The Respondent called as witness Cynthia Burt and Ray Howard. Respondent offered and had admitted into evidence one exhibit.

Subsequent to the final hearing, the parties submitted proposed findings of fact and conclusions of law for consideration by the Hearing Officer. To the extent that those proposed findings of fact and conclusions of law are inconsistent with this order, they were rejected as being not supported by the evidence or as unnecessary to a resolution of this cause.

FINDINGS OF FACT

1. Petitioner is an inmate incarcerated at Tomoka Correctional Institution, Daytona Beach, Florida. He is presently serving a sentence of 60 years and has a presumptive parole release date of 180 months.

   
   

2. Petitioner specifically challenges the validity of the matrix time range contained in Rule 23-21.09(5), Florida Administrative Code. That provision contains a matrix which sets the time ranges for presumptive parole release dates. A copy of that matrix is attached to this order as Appendix I.

   
   

3. The most current matrix was last amended effective October 1, 1982. The initial or first matrix was developed and became effective in 1979 in response to legislation adopted in 1978 which required the Parole and Probation Commission (hereafter referred to as Commission) to develop and implement objective parole guidelines. Prior to this time, the granting or denying of parole had been a subjective decision by the commissioners and required a majority vote of the commissioners.

   
   

4. In originally developing the matrix, the Commission used the Thurston Scaling Method in ranking various criminal offenses from least to most serious offense. This method involved providing each of the Commissioners with 40 index cards on which the various criminal offenses were written. Each commissioner then ranked the various criminal offenses in order of seriousness. The Board then reviewed the results and arrived at a consensus on the ranking of the various crimes. The Thurston scaling methodology is an accepted scientific methodology for ranking different crimes by level of seriousness or severity. This methodology was recommended to the Commission by three consultants in the field of parole. These same three experts, Peter Hoffman, Director of Research for the U.S. Parole Commission, Dale Parent, Director of the Sentencing Guidelines Commission for the State of Minnesota, and Betty Taylor, a parole commissioner for the State of Oregon, advised and consulted with the board in developing the objective parole guidelines.

   
   

5. After the initial matrix was adopted as a Commission rule, it was reviewed on an annual basis as required by statute. Since 1979, some changes in the matrix have been adopted by the Commission based upon their annual review. Each change was adopted as a rule change and the procedures for adopting or amending administrative rules were followed. The procedure for adopting the rule changes generally took at least 90 days.

   
   

6. The present matrix contains six categories of crimes broken down by degrees. Each inmate is assigned a salient-factor score and by using this score with the offense for which the person was sentenced a time range for the Presumptive parole release date for that individual is obtained from the matrix. The Commission sets the presumptive parole release date within that range unless other factors warrant going outside that range by extending or reducing the number of months to the presumptive parole release date. The inmate's presumptive parole release date may also be extended for unsatisfactory institutional behavior while incarcerated.

7. The Commission, in granting or denying parole, considers the total case package including those specific reasons which may serve as a basis for going above or below the matrix time range. When the Commission goes outside the matrix time range it must state its reason for doing so.

   
   

8. Prior to March 1983, the forms of the Commission's actions were filed in a central storage area. In March 1983, the mechanism became available for feeding this information into the computer. Using the computer and data which is maintained by the Department of Corrections, the Commission now generates quarterly reports. These reports provide a statistical analysis which indicates whether the guidelines are being following by the Commission. This same data also provides a possible indicator for needed changes in the guidelines. All revisions to the guidelines must now be made based upon such statistical analysis.

   
   

9. Sentencing guidelines and objective parole guidelines are separate.

   The salient-factor scores for the sentencing guidelines and objective parole guidelines are similar, but not the same. Sentencing involves a separate branch of government, a separate function, separate measurements, and separate criteria. Sentencing can be done only by a court of law and is accomplished by court order. Sentencing sets the limit of the incarceration period. The parole function is a function of the executive branch and cannot be ordered by the Commission. An offer of parole is tendered or offered by the Commission and the inmate may accept or reject the offer and its condition. If the inmate accepts an offer of parole, the form used is a contract form which must be signed and agreed to by the inmate. Parole results in release under supervision whereas completion of the sentence results in full release without conditions or supervision.

   
   

10. Section 947.165(2), Florida Statutes, was amended by the 1982 legislature. See Session Law 82-171. Prior to this amendment, changes made in the objective parole guidelines were to be based upon the "experience" of the commission. The amended section provides that the Commission shall review the guidelines at least once each year and make any revisions considered necessary by virtue of statistical analysis of Commission actions. The initial report of the data generated by this statistical analysis was to be due January 30, 1983. See Florida Statute 947.13(3)(1982). The Commission and its staff began work immediately after the passage of 82-171 to implement the statistical analysis and reporting requirements.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties of this action.

    
    

12. The Petitioner has standing to maintain this proceeding pursuant to Section 120.56, Florida Statutes (1983). The Petitioner has been and will continue to be substantially affected by the challenged rule. See Florida Department of Health and Rehabilitative Services v. Jerry, 353 So.2d 123 (Fla. 1st DCA 1978) cert. den., 359 So.2d 1215 (Fla. 1978); Department of Corrections

    v. Sumner, 447 So.2d 1388 (Fla. 1st DCA 1984).

    
    

13. Petitioner challenges the validity of Rule 23-21.09(5), Florida Administrative Code, which contains the matrix time ranges for establishing presumptive parole release dates. Petitioner contends that the rule is an invalid exercise of delegated legislative authority and is in conflict with the sentencing guidelines as well as Section 947.165, Florida Statutes, which

    mandated the development and implementation of objective parole guidelines. Petitioner also contends that the matrix violates the United States and Florida Constitutions. This forum may not determine the constitutionally of an existing rule. The power to adjudicate that an existing rule is unconstitutional is a judicial power and such adjudication may not be made by an administrative officer or agency, State, Department of Administration v. Division of Administrative Hearings, 326 So.2d 187 (Fla. 1st DCA 1976); State, Department of Administration v. Stevens, 344 So.2d 290 (Fla. 1st DCA 1977); Cook v. Florida Probation and Parole Commission, 415 So.2d 845 (Fla. 1st DCA 1982).

    
    

14. Petitioner's primary contention is that because of the differences in the time ranges for parole and the sentencing guidelines under Rules of Criminal Procedure 3.701 and 3.988 for similar offenses, the challenged matrix is in conflict with the Florida criminal justice system and is therefore invalid.

    This contention is found to be without merit. Sentencing and parole are two separate functions performed by two different branches of government. The purpose of the two functions is different and some criteria which impact the grant or denial of parole have no application to the sentencing process. An example of this is the requirement relating to satisfactory institutional behavior. The parole guidelines and the setting of a presumptive parole release date cannot extend nor increase the limit of incarceration set by the inmate's sentence. There is also no requirement in Chapter 947, Florida Statutes, that the objective parole guidelines be based upon or be similar to the sentencing guidelines. Experience under the new sentencing guidelines may in fact trigger or cause changes in the matrix, but such changes were not required merely by the adoption and implementation of the sentencing guidelines.

    
    

15. Petitioner also contends that the challenged matrix was not based upon statistical analysis and data as required by Section 947.165(2), Florida Statutes. This issue was not specifically raised in the petition, but was raised over objection at the time of the formal hearing. The Petitioner contains very general allegations and the Hearing Officer considered such an issue to have been reasonably included in the allegations of the petition.

    
    

16. The current matrix became effective as a rule on October 1, 1982. Typically, rule changes had required at least 90 days. The amendment to Section 947.165(2), Florida Statutes (1982), requiring changes to be based upon statistical analysis became effective April 20, 1982. Simultaneous with this amendment the legislature amended Section 947.13, Florida Statutes, and added the following language:

    
    

    1. The commission shall perform all statistical analyses, research, and program evaluations necessary to comply with the directives of this chapter. Such research shall include, but shall not be limited to, the following:

       1. The total number of presumptive parole release dates assigned by each panel of commissioners. This total shall be disaggregated to indicate, by commissioner, the number of dates falling within the objective parole guidelines; the number of dates aggravated and

          the extent to which the average

          of these dates was affected; and the number of dates mitigated and the extent to which the average of these dates was affected.

          1. The total number of presumptive parole release date recommendations made by each hearing examiner, reported by region. This total shall be disaggregated to indicate the number of

             dates falling within the objective parole guidelines; the number of dates aggravated and the extent to which

             the average of these dates was affected.

          2. The total number of presumptive parole release dates set as described in paragraph (a) disaggragated in the form of a cross-tabulation reflecting matrix variable used by the commission in establishing these dates.

          3. The average time required to be served, by offense, prior to release

             by parole as a result of the application of objective parole criteria with aggravating and mitigating factors considered.

          4. The average degree of difference between the original presumptive parole release date recommendations of the

          hearing examiners, the original presumptive parole release dates set by the commissioners, and the effective release dates; and; in cases in which there is

          wide variance between any of these, the frequency of reasons given for such discrepancies.

          
          

          The commission shall report such data to the substantive committees of the Legislature quarterly, with the initial report due January 30, 1983, and each subsequent report due 30 days past the conclusion of the preceding quarter.

          
          

          Section 947.13 sets forth the powers and duties of the Commission.

          
          

17. The mechanism for inputting the data into the computer and performing the statistical analysis necessary for the required reports was not available until March 1983. The initial report of this data was due January 30, 1983. Reading the Sections 947.165(2), and 947.13(3), Florida Statutes together, it is concluded that all revisions subsequent to the initial completed statistical analysis are required to be based upon the statistical analysis.

18. The present matrix became effective before the first period of statistical analysis and reporting was to be completed and was therefore not required to be based upon that statistical analysis. The evidence established that all revisions to the matrix had been based upon the experience of the various commissioners. Such a revision clearly meets the requirements of Section 947.165(2) prior to the 1982 amendment. See Lopez v. Florida Probation and Parole Commission, 410 So.2d 1354 (Fla. 1st DCA 1982).

    
    

19. Prior to the 1982 amendment, Section 947.165(2) provided:

    
    

    At least once a year, the commission shall review the objective parole guidelines and make any revisions considered necessary

    by virtue of experience. The commission shall be responsible for notifying the department of the statistical information and automated data requirements necessary for program review and monitoring by the commission, and the department shall consider such a request on a priority basis in accordance with the provisions of s. 20.315(2).

    
    

    The legislature clearly required that an annual review and necessary revisions occur in 1982 as in prior years. The legislature also contemplated a delay between enactment of amended Section 947.165(2), Florida Statutes and availability of the first completed statistical analysis. Use of "experience" as opposed to "statistical analysis" for the 1982 review and revision was therefore proper.

    
    

20. When a party challenges the validity of an administrative rule, that party has the burden of proof and that burden is a stringent one. Agrico Chemical Co. v. State of Florida, Department of Environmental Regulation, 365 So.2d 759 (Fla. 1st DCA 1979) cert. denied. 376 So.2d 74 (Fla. 1979). Petitioner has failed to meet that burden in the instant case. The matrix is reasonably related to the legislation it seeks to implement and has not been demonstrated to be arbitrary and capricious. See Lopez v. Florida Parole and Probation Commission, supra.

FINAL ORDER

Based upon the foregoing findings of fact and conclusions of law, it is concluded that the Petitioner has failed to establish that Rule 23-21.09(5), Florida Administrative Code, is an invalid exercise of delegated legislative authority and therefore the petition is DISMISSED.

DONE AND ORDERED this 22nd day of June 1984, in Tallahassee, Florida.

MARVIN E. CHAVIS

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 22nd day of June, 1984.

COPIES FURNISHED:

Enoch J. Whitney, Esquire General Counsel

Florida Parole and Probation Commission

1309 Winewood Boulevard, Building 6

Tallahassee, Florida 32301

Carroll Webb, Executive Director Administrative Procedures Committee Room 120, Holland Building Tallahassee, Florida 32301

Ms. Liz Cloud, Chief Department of State

Bureau of Administrative Code Room 1802, The Capitol Tallahassee, Florida 32301

Paul R. Layton, D.C. 040729 3950 Tiger Bay Road

Daytona Beach, Florida 32014

Randall C. Mumper Qualified Representative 3950 Tiger Bay Road

Daytona Beach, Florida 32014

Docket for Case No: 84-000209RX

Orders for Case No: 84-000209RX