Farber v. Florida Parole and Probation Com'n
| Decision Date | 14 February 1983 |
| Docket Number | No. AI-472,AI-472 |
| Citation | 427 So.2d 1016 |
| Parties | Jack B. FARBER, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee. |
| Court | Florida District Court of Appeals |
Jo Ann Levin of Kidder & Levin, P.A., Tallahassee, for appellant.
John C. Courtney, Asst. Gen. Counsel, Orlando, for appellee.
Farber appeals Commission action establishing his presumptive parole release date (PPRD). We affirm, but remand for correction of a clerical error.
Farber's PPRD was calculated with aggravations for "use of a firearm as reflected in the PSI [post-sentence investigative report]" and for "assaulted victim by striking her in the eye with his fist--PSI."
Farber contends he neither had a firearm nor struck the victim. He characterizes his weapon as a starter pistol and argues that this is not a firearm for PPRD purposes. He describes the striking as "fear prompted her to grab the steering wheel and bury her head in the center section of the steering column."
Farber launches a broad attack upon the use of and reliability of the PSI. The Commission's over-reliance on the PSI has and will cause litigation concerning its reliability, see Rolle v. Florida Parole and Probation Commission, 426 So.2d 1082 (Fla. 1st DCA 1983); James v. Florida Parole and Probation Commission, 395 So.2d 197 (Fla. 1st DCA 1981). We would be more comfortable with a system that is not based on hearsay, but the Commission's action in this case is supported by the record.
The information to which Farber pled guilty following a plea bargain charged possession of a firearm. The Commission may rely on the charging documents for the circumstances of the prisoner's crime, see Battis v. Florida Parole and Probation Commission, 386 So.2d 295 (Fla. 1st DCA 1980). There is only Farber's unsubstantiated statement that the weapon was a starter pistol. We therefore hold that the Commission's determination that a firearm was present is supported by the record and do not reach the characterization of starter pistols as firearms.
Similarly, there is only Farber's unsubstantiated and somewhat unlikely description of events to contradict the finding that the victim was struck. Under these circumstances, when the prisoner has not come forward with any evidence casting doubt upon the PSI's information, the Commission may rely on the PSI. Compare Rolle, supra. We do not disagree with the dissenting opinion; we merely do not reach those issues under these facts.
The Commission action form failed to include a salient factor score and an offense severity rating. It is apparent that the Commission was using these numbers as assessed by the hearing examiner. The omission of them appears to be a purely clerical error which we remand for correction.
AFFIRMED.
Although I agree with the majority that no reversible error has been demonstrated from this record regarding appellant's point that the Commission erred in failing to establish a salient factor score and offense severity rating, I respectfully dissent to that portion of the majority's opinion sustaining the Commission's order aggravating appellant's presumptive parole release date (PPRD) by an additional 37 months.
Farber was charged by information with the offenses of kidnapping, sexual battery and robbery. On July 18, 1978, the first two charges were nolle prossed following his plea of guilty to the lesser offense of involuntary sexual battery in violation of Section 794.011(4)(b), Florida Statutes. He was then committed to the South Florida State Hospital as a mentally disordered sex offender for approximately two years. On his release, he was sentenced to ten years' imprisonment, with credit for time served, to be followed by five years of probation. The Commission, in establishing Farber's PPRD, first aggravated his parole release date 25 months by its reliance upon information in a postsentence report reflecting that a firearm was used in the commission of the crime. The Commission next aggravated that date an additional 12 months, again by relying upon information in a postsentence report stating that Farber had "punched" the victim in the eye following the sexual battery. The sources of the Board's information in both instances are not disclosed in the report--other than its reference to two counts in a charging document, one of which was later nolle prossed, alleging the commission of certain offenses by use of a "pistol."
Farber objects to the Commission's characterization of the starter pistol he used as a "firearm", since he claims it is not capable of firing projectiles. I find substantial merit in this argument. Section 790.001(6), Florida Statutes, defines firearm as any weapon, including a starter gun, "which will, is designed to, or may readily be converted to expel a projectile by the action of an explosive; ...." Since a starter gun is not designed per se to fire a projectile, he asserts that the burden was upon the Commission to establish by competent and persuasive evidence the weapon's ability to expel a projectile by the action of an explosive, or that it could be readily converted to do so. Cf. M.M. v. State, 391 So.2d 366 (Fla. 1st DCA 1980), cert. denied, 411 So.2d 384 (Fla.1981); M.R.R. v. State, 411 So.2d 983 (Fla. 3d DCA 1982). He supports his position by referring to the arresting officer's statement in the postsentence report, identifying the weapon as a "toy gun." It is significant that nowhere in the report is any statement attributed to any person reflecting that the "firearm" was tested or examined in an effort to determine whether it complied with the statutory definition.
As to the second aggravation, Farber denies that he struck the victim at any time. The primary obstacle confronting Farber in his defense to the two aggravations is that no person is specifically identified in the postsentence report as the source of the information upon which the Commission based its aggravations; hence, he has had no opportunity to challenge the accuracy of the information which appears to be wholly hearsay. 1
Farber first contends that the procedures of the Commission amounted to a denial of due process in that they do not provide him with a proper consideration for parole. Any due process analysis must necessarily begin with a determination of whether a protectible liberty or property interest exists. For such an interest to exist
a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.
Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 7, 99 S.Ct. 2100, 2103, 60 L.Ed.2d 668, 675 (1978) (e.s.) (citing Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548, 561 (1972)). Whether a "legitimate claim of entitlement" to a particular interest exists must be determined by reference to state law. Roth, 408 U.S. at 577, 92 S.Ct. at 2709, 33 L.Ed.2d at 561. Metropolitan Dade County v. Peterson, 311 So.2d 119 (Fla. 3d DCA 1975). It is well settled that "there is no absolute right to parole," Moore v. Florida Parole and Probation Commission, 289 So.2d 719, 720 (Fla.1974), nor "[is] [t]here ... [any] constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence." Greenholtz, 442 U.S. at 7, 99 S.Ct. at 2103, 60 L.Ed.2d at 675. Although Greenholtz ended any speculation that a general protectible right to parole might exist, it added that the various states might, through the enactment of statutes providing for parole, create such rights.
The next logical question then is whether Florida statutes have created a right to proper consideration for parole 2 to which Farber has a legitimate claim of entitlement, protectible by due process considerations. Such a right was explicitly recognized by the Florida Supreme Court in Moore:
While there is no absolute right to parole, there is a right to a proper consideration for parole. And this should be free from the consequences of a conviction not meeting the standards of Gideon v. Wainwright .... The Parole Commission is required, as any other body, to comply with constitutional requirements; it cannot deny parole upon illegal grounds or upon improper considerations.
289 So.2d at 720. An essential ingredient in such proper consideration for parole is the inmate's right to have the "question of his eligibility for parole determined upon evidence which passes constitutional muster." Id. at 720 (e.s.).
At the time Moore was decided, the system for granting or denying parole in Florida was "subject to allegations of arbitrary and capricious" actions. Ch. 78-417, § 1 Laws of Florida. Recognition of that situation prompted the Florida legislature in 1978 to enact the "Objective Parole Guidelines Act" for the purpose of establishing "an objective means for determining and establishing parole dates for inmates." Id. The most radical change under the revised act was the creation of the "presumptive parole release date", which was defined as the "tentative parole release date as determined by objective parole guidelines." § 947.005(4), Fla.Stat. (1981) (e.s.). For the first time, the legislature mandated that within one year from the prisoner's initial confinement, most would be assigned such a date. § 947.16(1), Fla.Stat. (1981). Once established, the date was to become binding on the Commission and was to be changed only for "reasons of institutional conduct or the acquisition of new information not available at the time of the initial interview." § 947.16(4), Fla.Stat. (1981). The legislative intent was given further clarification with the provision that after a parole release date was set, it could "be modified only for good cause in exceptional circumstances." § 947.173(3), Fla.Stat....
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...Florida Rules of Criminal Procedure, committee note. As Judge Ervin said in a dissenting opinion in Farber v. Florida Parole and Probation Com'n, 427 So.2d 1016, 1020 (Fla. 1st DCA 1983): The purpose of such disclosure is to enable the defendant to bring any error to the attention of the co......