Findings Of Fact Standing. The Petitioner, Roger Smith, is an inmate in the custody of the Department of Corrections. The Petitioner is subject to the rules of the Respondent, the Florida Parole Commission, including the Challenged Rule. The Petitioner is serving a "parole eligible sentence." The Petitioner's eligibility for parole has been determined by the Respondent. The Petitioner was convicted of the offense of escape and, therefore, the Respondent applied the Challenged Rule to the Petitioner. The Respondent. Sections 947.07 and 947.13, Florida Statutes, authorize the Respondent to adopt rules governing the parole of inmates in the State of Florida. Among other things, Section 947.13, Florida Statutes, authorizes the Respondent to determine who is placed on parole and to fix the time and conditions of parole. Pursuant to Sections 947.07 and 947.13, Florida Statutes, the Respondent promulgated the Challenged Rules. Rule 23-21.018(1) and (7), Florida Administrative Code. Rule 23-21.018(1) and (7), Florida Administrative Code, provides the following: Vacation of presumptive or effective parole release date: The exiting of an inmate from the incarceration portion of his sentence, which shall include but not be limited to bond, escape, parole or MCR release, expiration of sentence, or transfer to a mental health facility, shall vacate any established presumptive parole release date. Any subsequent return to incarcerations will require an initial interview to establish a presumptive parole release date. Provided, however, inmates returning to court for modification of a previously imposed sentence or as witnesses shall not have their presumptive parole release dates vacated. Inmates returning to courts outside of Florida's jurisdiction, i.e, Federal or other state, shall not have their presumptive parole release dates vacated. However, information resulting from disposition of cases in court may be used as new information in accordance with applicable law and these rules. Inmates transferred to a Mentally Disordered Sexual Offender Program shall not have their presumptive parole release dates vacated. . . . . Conviction for crimes committed while incarcerated: Escape or any other crime committed during incarceration with an ensuing conviction and sentence vacates any previously established presumptive parole release date and shall cause the inmate to be considered a new admission. If the inmate is found to be eligible for consideration for parole, the Commission shall aggregate.
The Issue Did Respondent violate the provisions of Section 817.567, Florida Statutes (2004), or any lesser included offenses, Section 943.1395(6) and/or (7), Florida Statutes (2004), and Florida Administrative Code Rule 11B-27.0011(4)(b) and/or (c), by failing to maintain the qualifications established in Section 943.13(7), Florida Statutes (2004), requiring maintenance of good moral character?
Findings Of Fact Undisputed Facts: Respondent was certified by the Criminal Justice Standards and Training Commission on September 5, 1995, and was issued Correctional Certificate Number 157626. Additional Facts: Petitioner's Exhibit numbered A11 is a copy of an interoffice memorandum from Respondent to the "Personnel Dept." This reference to the personnel department is taken to refer to the Florida Department of Corrections, in view of other proof in this record. The interoffice memorandum goes on to describe as the subject "transcript and diploma." The interoffice memorandum says "I have enclosed a copy of my diploma and transcript. Please place these in my personnel file and update my records and incentive. Thank you, W.S.D." The exhibit reflects in a handwritten note of unknown origins, "This diploma & transcript are ineligible for CJIP because this is not an accredited college." Nothing else in this record describes the nature of the transcript and diploma referred to in the interoffice memorandum concerning the particulars of the transcript and diploma that was mentioned on January 31, 1999, nor can it be reasonably inferred. As evidenced by Petitioner's Exhibit numbered A15, Respondent prepared and signed an employment application with the Florida Department of Corrections for the position of Correctional Probation Officer on June 14, 2004. In the course of this application Respondent listed under the section related to college university or professional school "Southern Mississippi" at "Hattiesburg, Mississippi", which he allegedly attended from August 1996 through August 2003, participating in a course of study referred to as "Criminal Justice" at which, according to the application, he earned an M.S. degree. In fact Respondent had never attended the University of Southern Mississippi as explained in correspondence dated July 6, 2004, from Greg Pierce, University Registrar at the University of Southern Mississippi directed to Terry Foskey, a payroll specialist with the Department of Corrections, Region I Service Center, who had inquired of the University of Southern Mississippi concerning Respondent's status as a student. This correspondence is Petitioner's Exhibit numbered A9. Moreover, a transcript, Petitioner's Exhibit numbered A3, which Mr. Foskey had supplied a verification specialist in the registrar's office at the University of Southern Mississippi, Trudy Stewart or Steward, was found not to resemble a transcript from that university, as explained by Mr. Pierce in his correspondence. The transcript, Petitioner's Exhibit numbered A3, had been received by Mr. Foskey on June 28, 2004. Mr. Foskey was uncertain of the information contained in the transcript. This led to his inquiry to the University of Southern Mississippi, with the determination being made that the transcript did not come from that university. While Mr. Foskey was attempting to clarify the status of the transcript with the University of Southern Mississippi, he was contacted by Respondent who asked if Mr. Foskey had received the transcript. Mr. Foskey replied that he had and asked what Respondent wanted done with that transcript. Respondent answered that he had pulled up information on a program known as ATMS, which the Florida Department of Law Enforcement uses to track certified officers, Respondent among them. As a result Respondent said that he needed this document, meaning the transcript, entered into the ATMS because he was transferring from his present position into another position he referred to as security. There was a series of e-mails as reflected in Petitioner's Exhibit numbered A8 from Respondent to Mr. Foskey. The first was on July 1, 2004. It says "Per telephone call, please place information in ATMS 2 and in my personnel file Thanks." Then the name and position of Respondent as Classification Officer at Santa Rosa CI-119 is provided. On that same date another e-mail was dispatched from Mr. Foskey back to Respondent which said "Thank you for the follow-up." As reflected in the exhibit, on July 7, 2004, Respondent sent an e- mail to Mr. Foskey, with the subject line being "Re: Transcript," which said in its text, "Mr. Foskey, how long does it take for the information to be entered into ATMS 2?" The change in employment position by Respondent that was being described for Mr. Foskey related to the application, Petitioner's Exhibit numbered A15. Pertinent to this inquiry, the Correctional Probation Officer job being sought by Respondent required a bachelor's degree level of education as a prerequisite to filling the position. The reference made by Respondent to the M.S. degree from University of Southern Mississippi is perceived as Respondent's attempt to show that he had the necessary level of education to apply for the job. In relation to his pursuit of the Correctional Probation Officer position, on June 8, 2004, Respondent had filed a request for demotion with the Regional I Service Center Department of Corrections for personal reasons, requesting permission to move from his position of Senior Classification Officer to that of Correctional Probation Officer. This is reflected in Petitioner's Exhibit numbered A15A. As a result of the incident concerning the purported transcript from the University of Southern Mississippi, the Department of Corrections, Office of the Inspector General investigated. That investigation was conducted by David Ellis. In a discussion between Mr. Ellis and Respondent concerning the subject transcript, Respondent acknowledged that he had the documentation sent to personnel, taken to mean the personnel office with the Department of Corrections. Respondent told Mr. Ellis that he had requested that the transcript be sent to personnel and had supplied information to a company to have it sent. Respondent did not remember the name of the company, as he explained to Mr. Ellis. Respondent told Mr. Ellis that he had read a personnel memorandum on the Department of Corrections website about a university in southern Florida that would accept life experience for college credits and that he, meaning Respondent, searched the web and found that the University of Southern Mississippi did likewise. The memorandum about the university in southern Florida, refers to Florida Southern College, and is found to be that as reflected in Respondent's Exhibit numbered A5. Respondent then sent an e-mail to the internet company requesting information about college degrees. The company sent him a package explaining the process and he sent something back about his life experiences, with a check of $800.00 and a list of other college credits earned elsewhere. Respondent told Mr. Ellis that he then received the subject transcript at his home from the University of Southern Mississippi on a later date. This is found to be as arranged through the internet company. The transcript that he received at home, Respondent compared to the one that had been received by Mr. Foskey and Respondent told Mr. Ellis they were the same with the exception that his transcript copy had a seal in the middle. Respondent acknowledged to Mr. Ellis that he had not taken any of the courses on the transcript that has been described and had not earned any grades for any of those courses reflected on the transcript. When Mr. Ellis asked Respondent why he would send something to personnel that he had never officially done, Respondent replied because he thought it was all right. Mr. Ellis asked Respondent to give him information about the internet company that Respondent had referred to and any information regarding payment to that company by Respondent. Respondent called Mr. Ellis back and told him that the name of the company was CustomDegrees.com. It is found that Respondent's Exhibit numbered 4 is information from CustomDegrees.com that Respondent relied on. Nothing about this information from CustomDegrees.com provided to Respondent, and for which Respondent paid a service fee, could reasonably be interpreted to serve as the functional equivalent of having earned the degree from the University of Southern Mississippi for which Respondent intended to take credit. Petitioner's Exhibit numbered A3A constitutes a handwritten educational history which Respondent provided to CustomDegrees.com for them to provide the degree which was falsely portrayed as having been issued by the University of Southern Mississippi.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a Final Order be entered finding violations of the Statutes and Rules referred to and suspending Respondent's Correctional Certificate Number 157626 for 60 days. DONE AND ENTERED this 12th day of April, 2006, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of April, 2006. COPIES FURNISHED: Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 R. John Westberry, Esquire Holt & Westberry, P.A. 1308-B Dunmire Street Pensacola, Florida 32504 Michael Crews, Program Director Criminal Justice Standards and Training Commission Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether Petitioner's application for licensure as a resident company employee all lines adjuster should be granted.
Findings Of Fact The Department is the state agency responsible for licensing and regulation of insurance adjusters in the State of Florida pursuant to Chapter 626, Florida Statutes. On February 21, 1989, Petitioner was found guilty by a jury of aggravated assault, a felony, in the Common Pleas Court of Philadelphia, Case No. CP88-06-0164. The original sentence of probation entered November 13, 1989, was vacated on January 30, 1991. Petitioner was re-sentenced November 26, 1991, to not less than five and not more than ten years of imprisonment. The action taken in Pennsylvania is based on a criminal complaint that alleges Petitioner shot a police officer with a handgun, while the police officer was attempting to arrest him. On November 15, 2004, Petitioner pled nolo contendere to resisting an officer with violence, a felony, in the Circuit Court in and for St. Johns County, Florida, in Case No. 04001546CF. Adjudication was withheld and Petitioner was sentenced to a term of five years of probation. On July 1, 2009, Petitioner submitted to the Department an application for licensure as a resident company employee all lines insurance adjuster. The application included the following question: Have you ever been convicted, found guilty, or pled guilty or nolo contendere (no contest) to a felony under the laws of any municipality, county, state, territory or country, whether or not adjudication was withheld or a judgment of conviction was entered? On the form submitted to the Department, Petitioner provides information related to an incident occurring June 13, 2003, in Saint Augustine, Florida, which presumably is related to the plea of nolo contendere in 2004, referenced in paragraph 3 above. The application does not divulge the Pennsylvania conviction. However, the Department conducts a background investigation on applicants, including a fingerprint check with both state and national law enforcement. Apparently, the Department requested additional information from Mr. Basara, and on August 20, 2009, he provided additional information regarding both the Pennsylvania and Florida crimes. With respect to the Pennsylvania crimes, Petitioner stated: In this paragraph I hope to outline the Pennsylvania charges. Over two decades ago on May 23, 1988, I was arrested and charged with things that I was not guilty of. I was twenty three years old. I do not claim to be completely innocent, but I was not guilty of the charges filed against me because there was no malicious intent on my part and my actions were in self defense. Never-the-less I accepted responsibility for my actions, was convicted and given probation by the judge. That same year I bought a home, got married, had my first daughter Amanda with my wife Barbara and went on to complete two years of the probationary sentence when I found out that the District Attorney had successfully appealed my probationary sentence. This required me to be re-sentenced to the Pennsylvania Department of Corrections. I appealed this "re-sentencing" and after 22 months I was successful. The Superior Court overruled the Lower Court and vacated my sentence completely. With agreement of the Appellate Superior Court, Common Pleas Judges, the District Attorney and myself we finally agreed on reduced charges and 5 years probation which was the "Final" final disposition. I completed all of the requirements with no problem and have gone on to live a productive and happy life since then. No documentation was submitted into evidence at hearing to support Petitioner's assertion that upon reversal of his sentence the second time, he pleaded guilty and was once again sentenced to probation.1/ On November 6, 2009, the Department issued a Notice of Denial, informing Respondent that denial of his application for licensure was based upon the criminal conviction in Pennsylvania and the plea of nolo contendere in St. Johns County, Florida. Based upon its interpretation of Florida Administrative Code rules establishing eligibility requirements, the Department determined his waiting period to apply for licensure to be 20 years from the date of the second felony, i.e., from the date he pled nolo contendere in St. Johns County.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That the Department of Financial Services enter a Final Order denying Petitioner's application for licensure as a resident company employee all lines adjuster, and establishing that his waiting period in terms of eligibility expires November 14, 2024. DONE AND ENTERED this 27th day of May, 2010, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of May, 2010.
Findings Of Fact The parties to this proceeding were afforded due and proper notice according to law of the final hearing. Petitioner was granted a Mandatory Conditional Release (hereinafter MCR) from a Florida state prison on October 31, 1975. He would have been Supervised in the same manner as a person released on parole until the expiration of his sentence on March 7, 1978. On October 8, 1976, the Petitioner received a directed verdict of acquittal from the Honorable Judge Allen R. Schwartz in Case No. 76-6250, State of Florida v. Walter Thomas, in the Eleventh Judicial Circuit Court in and for Dade County, wherein the Petitioner was charged with the crime of sexual battery against a female in violation of Section 794.011, Florida Statutes. The Respondent Subsequently charged Petitioner with the violation of Condition 8 of his MCR Certificate " . . . by failing to live and remain at liberty without violating the law, in that on or about July 6, 1976, in Dade County, Florida, [he] did unlawfully participate in the involuntarily sexual battery of . . ." a named female. Pursuant to Petitioner's request, Respondent held what it terms a "majority" final revocation hearing on February 4, 1977, with Commissioners Maurice G. Crockett, Ray E. Howard, Annabelle P. Mitchell and Charles J. Scriven present. The Respondent revoked Petitioner's MCR in an Order dated February 10, 1977, signed by Commissioners Roy W. Russell, Ray E. Howard, Maurice G. Crockett and Armond R. Cross. On April 7, 1977, the Commission issued an Amended Order correcting a clerical omission in its original order. Although Respondent had the discretion to grant credit for the time Petitioner spent on MCR no such credit was granted. On July 1, 1977, Petitioner was again released on her to remain thereon until the expiration of his sentence. Since he had not received credit for the time previously spent on NCR his current sentence expiration date has been extended from March 7, 1978 to "November 11, 1978. Section 947.23(1), Florida Statutes, states that: "As soon as Practicable after the arrest of a person charged with violation of the terms and conditions of his parole, such parolee shall appear before the commission [Respondent] in person . . . and a hearing shall be had in which the state and the parolee may introduce such evidence as they may deem necessary and Pertinent to the charge of parole violation." The same section further provides that after the foregoing hearing the Commission shall make findings upon such charge of parole violation and shall enter an order determining whether the charges have been sustained and by that order shall revoke the parole or reinstate the original order of parole or enter such other order as the Commission may deem proper. The evidence in this case establishes that the Respondent has an established procedure and practice by which it implements the foregoing statutory requirement. Rule 23-16.09(3), F.A.C., entitled "Hearings; Revocation of Parole" sets forth, in part, this Procedure and Practice. It does not, however, set forth the complete procedure and Practice. It provides that a parolee can elect to appear either before a majority of the Commission or one Commissioner. Rule 23-16.09(3), F.A.C. Apparently following that Provision Respondent conducts two types of final parole revocation hearings. The great majority of these are referred to as "single member hearings" wherein the alleged violator agrees to have a single member of the Respondent Commission conduct the final hearing. The remainder are referred to as "majority member hearings" where a hearing panel of four members of the Commission conduct the final hearing. The manner in which the foregoing types of hearings are conducted by Respondent and a final order entered pursuant thereto has, by the Practice of the agency, become quite formalized and definite but has not been codified in the Florida Administrative Code. The procedure and practice of Respondent in the conduct of single member parole revocation hearings is well established and inflexible. The single member hearings are held every Friday with one member of the Commission present and conducting the hearing. The Commissioner receives the waiver of the alleged violator to a majority hearing and resolves the question of the alleged violator's right to counsel. The charges are then read, witnesses sworn and permitted to testify, evidence taken and the alleged violator permitted to admit or deny the charges and to testify. The single Commissioner takes notes and fills out a brief one page form which in part contains his recommendation and eight lines for the alleged violator's Statement, mitigating circumstances and witness statements. This form along with all evidence presented at the hearing is placed in the alleged violator's file which is then returned to Tallahassee, Florida, for further action. As soon as possible upon arriving in Tallahassee, usually within the next five (5) working days, the case is placed on the voting panel docket. The Commission maintains a duty roster which requires four members of the Commission to meet in the regularly scheduled voting panel meeting, normally held on Thursday of each week, to review those cases docketed for that panel. This duty roster for the voting panel is compiled without regard to which Commissioner conducted the hearings which are to come before the voting panel. Each Commissioner on the voting panel has had access and opportunity to review individually all information, evidence, recommendations and other matters in the file on the alleged violator and to review the record of the hearing. The evidence, however, establishes that it is rare indeed for any of the members of the voting panel to have read the record of the hearing on which they vote. The evidence further establishes that the Commission has no requirement that those members of the voting panel who did not hear the case read the record. Although a tape recording or court reporter's notes are made of the parole revocation hearing they are seldom transcribed and almost never read by the Commissioners sitting on the voting panel. Usually, the Commissioner who conducted the single member hearing is present at the meeting of the voting panel which is to consider that case. It is further the practice of the agency for that Commissioner who held the hearing to then tell the voting panel the facts as he knew them in addition to the information on the form referred to above. The alleged violator nor his counsel is allowed to appear at the voting panel's meetings. In practice, the members of the voting panel do not read the record of the hearing below nor do they read the entire file made available for their perusal. That file may contain matters not presented in evidence at the parole revocation hearing. After consideration of the file and record as they see fit and having heard the remarks of the Commissioner who conducted the hearing, and engaged in such discussion as they deem appropriate, the voting panel votes on the disposition of the case before it. It is the position of Respondent in considering parole revocations that Section 947.06, Florida Statutes, requires four (4) Commissioners voting together to restore or revoke the alleged violator's mandatory conditional release or to discharge the matter. Therefore, should a split vote occur at the voting panel meeting the Commissioner who held the hearing must then attempt to seek a majority vote from other members of the Commission on whether to restore, revoke or discharge. A typical situation would find four of the seven Commissioners sitting on the voting panel, a fifth Commissioner having conducted the single member hearing, and two remaining Commissioners, who were neither at the parole revocation hearing nor the meeting of the voting panel. If the voting panel is not unanimous in its disposition of the hearing these remaining Commissioners are then lobbied by the Commissioner who held the hearing and perhaps some or all of the Commissioners who sat on the voting panel, to cast their vote in order that there may be four votes together on whether to revoke restore, or discharge. These two members are not required by the practice of the Respondent to read the record of the parole revocation hearing or review the file of Respondent on the alleged violator and, in fact, do not generally read the full record or review the entire file. A majority member parole revocation final hearing is the same as a single member final hearing with the exceptions noted below. Instead of a single member of the Commission being present and conducting the hearing, four members of the Commission are detailed to hold the majority hearings which are held on the first Friday of each month. The four sit and listen to the testimony and evidence, taking notes and filling out a face sheet similar to that form used in a single member hearing. Immediately following the hearing the four members discuss the case and frequently a tentative vote is taken and recorded informally on the face sheet which is then included in the file and returned with the record of the hearing to Tallahassee. Cases which have been heard by four members of the Commission are placed on a voting panel docket just as are cases heard by a single member of the Commission. The voting panel members are rarely, if ever, the same four members of the Commission who attended and held the final revocation hearings, although some members of the voting panel will have sat on the hearing panel. As in a single member hearing coming before the voting panel, the panel discusses and reviews each case on the docket with the file readily available to each member of the Commission at the voting panel meeting. However, just as in the case of the single member hearing reviewed by the voting panel, the members of the voting panel are not required to read the record of the final hearing or fully review the file made available to them on the alleged violator and generally have not done so. Following a review and discussion of the docketed cases a vote is taken by the voting panel. The Respondent takes the position that, pursuant to Section 947.06, Florida Statutes, there must be four votes in agreement to restore, revoke or discharge. Should a split vote occur in the voting panel the remaining three Commissioners are approached by members of the voting panel and their vote recorded to revoke, restore or discharge. This vote is not generally done at a regularly scheduled meeting of any sort and these Commissioners are not required to and generally have not read the record nor fully reviewed the file in the matter. Once four members of the Commission are in agreement to revoke, restore, or discharge, the staff is directed to prepare a final order which order informs the violator of the charges alleged, the decision of the Commission, a brief summary of the evidence relied upon and the effective date of said action. The order further contains the signatures of the members of the Commission who took the action. It is the announced practice of Respondent that when the Commissioners consider and determine whether the alleged violator is guilty of the charges they do not consider information outside the record of the final revocation hearing, although the agency file, which is generally not introduced at the hearing, is available to the Commissioners. However, it is also the announced practice of the Respondent that after determination by the Commission that the alleged violator is guilty of the charges, but before the entry of any final order, the Commissioners will consider matters outside the record of the final revocation hearing. The Respondent does not give the alleged violator or his counsel notice of this evidence or an opportunity to respond to it. This evidence is considered by the Commission after a determination of guilt for the purpose of deciding whether to restore MCR even though the violator was guilty of the charges, to simply revoke, or to grant credit for time on MCR even though it is revoked. The testimony of the Commissioners appearing in this proceeding establish that those Commissioners voting on these revocation matters who were not present at the final hearing get to know the facts presented at the hearing Primarily by word of mouth from the Commissioner or Commissioners who were present at the final hearing. It further establishes that the Commissioners who vote on these revocation matters and who were not present at the final hearing do not generally, though in some cases they may, review all of the evidence presented at the final revocation hearing. Respondent Presently brings revocation charges against a conditional releasee who has been tried for a criminal offense while on conditional release. Further, even though the conditional releasee is found innocent by reason of a directed verdict of acquittal, or a jury verdict of not guilty, or a verdict of not guilty in a non-jury trial, Respondent charges and may revoke said conditional release on the same or similar facts and matters raised at the criminal proceeding if Respondent finds that the terms and conditions of the releasee's MCR were violated. Petitioner has attempted to prove that it is the rule of Respondent to issue final orders affecting substantial interests which do not include findings of fact and conclusions of law separately stated. The evidence presented establishes that, although there may be genuine disagreement on whether a certain final order affecting substantial interests contain proper findings of fact and conclusions of law, nevertheless, it is the policy of the agency to include such findings and conclusions in its final orders. Respondent argues that it has formally promulgated as rules Chapters 23-16 and 23-17, Florida Administrative Code, which chapters establish the practices and procedures utilized by Respondent in the granting and revocation of conditional releases. Further, Respondent points out that Rule 23-16.09, Florida Administrative Code, entitled "Hearings; Revocation of Parole" is the formally promulgated rule dealing with parole revocation hearings. The evidence establishes that the practices and procedure set forth in paragraphs 3, 4, 5, 7 and 8 above are not formally codified by the Respondent and have not been promulgated in accordance with Chapter 120, Florida Statutes. The evidence further establishes that these practiced and procedures apply, without exception, to all final parole revocation hearings and are the practices and procedures used by the Respondent to implement its statutory responsibilities under Chapter 947, Florida Statutes, and specifically Section 947.23, Florida Statutes. These practices and procedures have been in effect for several years and, although not formally codified, the Commissioners, by their testimony and responses to discovery, have stated these practices and procedures to be those of the agency applicable to all final revocation hearings.
Findings Of Fact The parties stipulated that Petitioner, Gary N. Piccirillo, was afforded a presumptive parole release date interview on May 14, 1982. Thereafter, on June 9, 1982, Respondent, Florida Parole and Probation Commission (FPPC), considered Petitioner's presumptive parole release date (PPRD) and set it for September 30, 1986. On June 28, 1982, Petitioner sought review of his established PPRD pursuant to Rule 23-21.12, Florida Administrative Code, and Section 947.173, Florida Statutes. In November 1983, a special parole interview was granted Petitioner, but the Commission at that hearing declined to change or modify Petitioner's PPRD. Petitioner's next biennial interview for review of his PPRD is scheduled for September 1984. However, Petitioner is currently scheduled to be released from confinement in either September or October 1984, if he is given credit for all earned gain time. Petitioner questions that portion of the rule which provides for only one review of the Commission action establishing or changing the PPRD, but apparently fails to recognize that portion which also provides for subsequent (biennial, special, or effective) establishments of PPRD, which tend to ensure at least periodic reviews of the PPRD. Petitioner attacks the validity of the rule, as amended on October 1, 1982, as it pertains to Sections (1)(e) and (2). He contends that (1)(e), which calls for verification of written or printed evidence provided directly by the inmate and notification to the proper state attorney if any of this evidence is invalid because it constitutes a threat of a penalty, which tends to inhibit the average inmate from presenting evidence he might otherwise present. Petitioner does not question the propriety of reporting false information, only the inclusion of a basis for doing so within the rule. Petitioner also contends that that portion of Paragraph (2) of the rule which provides that the Respondent will not address matters within certain categories, unless new factual information came into existence after the initial interview, is unfair, unduly restrictive, and places an unreasonable burden on prisoners who would be unprepared psychologically to present all their information at the initial interview in its best light. Petitioner contends that after the newness of incarceration wears off and the individual is more comfortable with the system, he would be better prepared to present this information again.
Findings Of Fact The parties stipulated to the following facts: The Petitioner, Dennis R. Cookish, is an inmate currently incarcerated at Hendry Correctional Institution, Route 2, Box 13-A, Immokalee, Florida 33934. His inmate number is 073819. The Respondent, Florida Parole and Probation Commission, is located at 1309 Winewood Boulevard, Bldg. 6, Tallahassee, Florida 32301. The Respondent is responsible for establishing presumptive parole release dates for all prisoners in the custody of the State of Florida who meet the requirements of 947.16, Florida Statutes. Petitioner met all of the requirements of 947.16, Florida Statutes, and was entitled to a PPRD initial interview on March 4, 1981. Petitioner was interviewed March 4, 1981, for the purpose of setting his PPRD. By action of the Respondent on March 25, 1981, Petitioner's presumptive parole release date was established. That date was set at November 27, 1984. Petitioner did not request administrative review of his presumptive parole release date pursuant to 947.173, Florida Statutes. The Respondent Commission is required under Section 947.16 and 947.172, Florida Statutes, to provide Petitioner with a presumptive parole release date. Respondent Commission is required to compute the presumptive parole release date according to Objective Parole Guidelines, under Section 947.165, Florida Statutes, (1979). Respondent Commission may use aggravating or mitigating circumstances in determining the presumptive parole release date but they must not be duplicative of the severity of offense behavior or the salient factor score pursuant to Sections 947.165(1), 947.172(2), Florida Statutes, (1979). The Commission was delegated rule making power via Section 947.07, Florida Statutes (1979). The Respondent Commission developed parole guidelines which became effective March 20, 1979. The guidelines are contained in Rule 23-19, Florida Administrative Code. The aggravation which is the subject of the instant challenge is contained in Rule 23-19.01(5), Florida Administrative Code. The Petitioner was convicted of grand theft after trust on February 26, 1980, of a second count of grand theft after trust on February 29, 1980, of uttering a forged instrument on January 22, 1980, of criminal attempt (attempted robbery) on April 14, 1980, and of uttering a forged instrument on June 16, 1980; and sentenced to concurrent terms of 3 years, 3 years, 2 years, 5 years, and 3 years, respectively, and followed by 2 years probation. The depositions of David Mack and Steve Seliger are stipulated and entered into evidence as their testimony in this proceeding. The following findings are made from the evidence presented at the hearing: As a result of passage of the "Objective Parole Guidelines Act of 1978," Respondent was required to develop objective parole criteria pursuant to the Act by January 1, 1979. The Florida Research Center was hired under a Federal grant to devise such criteria. The purpose of the project was to fulfill the legislative purpose of developing objective parole guidelines under acceptable research methods to be based on the seriousness of the offense and the likelihood of favorable parole outcome. The Florida Research Center developed the required data and methods after studying the procedures followed in other states, current release data, scaling techniques, and the like. Respondent Parole and Probation Commission and its staff contributed extensively to the study. As devised, the rules promulgated as Chapter 23-19, Florida Administrative Code, provide a method of arriving at a "salient factor" score which serves as an actuarial parole prognosis aid. It is derived by considering such matters as prior convictions and incarcerations, total time served, age at first commitment and prior parole revocations or escapes. The other major facet in determining a presumptive parole release date is an "offense severity rating" which reflects the present offense of which the inmate was convicted. Offenses are characterized according to the type of offense in nine categories ranging from "Low" to "Greatest (Most Serious IV)". Each category reflects four "matrix time frames" which are the minimum and maximum number of months to be served before parole. The particular time frame for a particular offense is based on the offender's salient factor score and represents parole prognosis. (Testimony of Farris, Exhibit 20) Respondent's Rule 23-19.01(5), F.A.C., provides that if the present offense of conviction involves 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 to be applied to both consecutive and concurrent sentences. Respondent's purpose in permitting multiple offenses to be used as aggravating factors to increase the parole matrix time frame was to recognize the proposition that there is a relationship between the numbers and types of criminal behavior which affects parole prognosis. Respondent's Rule 23-19.03, F.A.C., provides other examples of situations in which the parole decision may be either above or below the matrix time frame based upon aggravating and mitigating circumstances. In determining whether to consider multiple offenses as aggravating factors, Respondent's hearing examiners review the inmate's complete file, including presentence reports, the circumstances of the offenses, psychological reports, and his prior record to determine whether such offenses should be a basis for adding additional months to the matrix time frame when arriving at a presumptive parole release date. Each such case is considered on its individual circumstances to arrive at a subjective determination of parole risk. Aggravating factors are probably not applied in 25 to 40 percent of the cases. These normally involve first offenders with multiple offenses arising out of the same incident or which occurred close in time. In the opinion of experts at Respondent's hearing examiner and field and supervisory levels, Rule 23- 19.01(5), F.A.C., relating to aggravating factors is reasonably related to the question of parole prognosis. (Testimony of L'Hommedieu, Farris, Exhibits 9, 20) The Respondent's hearing examiners who interviewed Petitioner Cookish on March 4, 1981, to arrive at his preliminary presumptive parole release date, computed a salient factor score of 5 based on prior convictions and incarcerations, total time served in years, and age at first commitment. Utilizing the conviction for criminal attempt (attempted robbery) as the most serious of the offenses for which the Petitioner was serving a concurrent sentence, they arrived at an offense characteristic of Moderate which provided for a matrix time range of 14 to 19 months. They then considered three of four other offenses for which he had been sentenced concurrently and applied the maximum number of months according to the type of offense as aggravating circumstances for each offense for a total of 51 months. This period was added to the maximum matrix time range of 19 months for a total of 70 months to be served prior to parole. Petitioner's incarceration commenced on January 31, 1979. By adding 70 months to that commencement date, the examiners recommended a presumptive parole release date of November 27, 1984. The Respondent adopted as its own the examiners' presumptive parole release date at a commission meeting on March 25, 1981. (Testimony of Petitioner, Exhibits 4-8, 10-11) Kenneth Whittington is an inmate at the Hendry Correctional Institution who received a recommended presumptive parole release date of January 4, 1983, after being interviewed by one of Respondent's hearing examiner panels. The date was based on a salient factor score of 10 which included one point for a prior parole revocation, and an offense characteristic of Moderate based on a conviction of burglary of a dwelling which placed him in the 18-33 month matrix time range. The total time recommended to be served was 33 months. He was not serving a concurrent or consecutive sentence. (Testimony of Whittington, Exhibits 12-14) Jimmy Lee Clark is an inmate at the Hendry Correctional Institution. He is serving three concurrent sentences for battery of a law enforcement officer, resisting arrest with violence, aggravated assault, and aggravated battery. He was on parole in 1977 for possession of heroin, but parole was revoked. He was on probation for aggravated battery in 1979 which was also revoked and he was thereafter sentenced. He was interviewed by Respondent's hearing examiner panel in March, 1981 to determine a presumptive parole release date. On March 24, 1981, Respondent commission concurred with the hearing examiner panel's recommendations and set his presumptive release date at September 11, 1984. The offenses for which he was concurrently sentenced were not used as aggravating factors in arriving at the presumptive date. The sentence which he is currently serving was imposed in August 1980 for a period of five years. (Testimony of Clark, Exhibits 15-18), Stewart Strickland is an inmate at the Hendry Correctional Institution currently serving a total of 8 years confinement on 6 concurrent and 2 consecutive sentences. He has had about 33 prior arrests primarily for check offenses and has spent approximately 6 years in prison. He was 18 years old at the commission of his first offense. His current convictions involve worthless check offenses and grand theft. One of his prior offenses was a federal charge involving violation of the Gun Control Act. He has had probation revoked several times in the past. He was once on parole but did not complete the same because of conviction on a bad check charge. He was interviewed by Respondent's hearing examiner panel in March 1980 to establish a presumptive parole release date. He received a salient factor score of 7 based on prior convictions, total time served, prior incarcerations, and age at first commitment. His offense characteristic was deemed Moderate for the offense of grand theft which placed him in a matrix time frame of 18 to 33 months confinement. Four of his 7 remaining concurrent offenses were used as aggravating circumstances totalling 72 months which, added to the 33 months maximum of the matrix time range, resulted in 105 months as the total time recommended by the examiner. His presumptive parole release date was established as July 18, 1987. (Testimony of Strickland, Exhibit l9)
Findings Of Fact Petitioner is an inmate incarcerated at Sumter Correctional Institution near Bushnell, Florida. The Petitioner was convicted for sexual battery and robbery in proceedings before the Circuit Court of the Seventh Judicial Circuit, State of Florida. On April 23, 1976, he was sentenced to serve 20 years for robbery and five years for sexual battery. Petitioner is presently incarcerated in accordance with these commitment orders. On December 19, 1979, Petitioner was interviewed by an examiner of the Parole and Probation Commission for the purpose of recommending a presumptive parole release date (PPRD). Under the 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 offense as "greatest (most serious II)." He set the salient factor score as one. The examiner recommended setting the PPRD at the top of the appropriate range given the offense characteristic and salient factor score, and further recommended aggravating this period because of the concurrent conviction for robbery. The examiner recommended a PPRD of September 7, 1982. The Parole and Probation Commission reviewed the recommendation and considered the robbery conviction as being a greater aggravating factor than applied by the examiner. The Commission set the PPRD for February 25, 1986. Petitioner sought further review of the PPRD by the Commission and was unsuccessful. Petitioner has also been unsuccessful in pursuing judicial relief in connection with the PPRD. Commission Rule 23-19.01(5), Florida Administrative Code, as applied to the 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. In adopting its rules, the Commission sought to develop criteria to predict the likelihood of successful parole. An inmate's history is the most reliable predictive device. Statistically, an inmate who has been convicted for more than one offense is a greater parole risk than an inmate who has been convicted for only one offense. The Commission's rule is thus a reasonable device for predicting the likelihood of successful parole.
