James v. Florida Parole and Probation Commission, ZZ-169

• Decision Date: 13 February 1981
• Docket Number: No. ZZ-169,ZZ-169
• Citation: 395 So.2d 197
• Parties: Phillip JAMES, Petitioner, v. FLORIDA PAROLE AND PROBATION COMMISSION, Respondent.
• Court: Florida District Court of Appeals

Page 197

395 So.2d 197

Phillip JAMES, Petitioner, v. FLORIDA PAROLE AND PROBATION COMMISSION, Respondent.

No. ZZ-169.

District Court of Appeal of Florida, First District.

Feb. 13, 1981.

Rehearing Denied March 18, 1981.

Phillip James in pro. per.

No appearance for respondent.

PER CURIAM.

An inmate of the Florida prison system seeks to have this Court order the Florida Parole and Probation Commission to perform its statutory duty and set his presumptive parole release date. Petitioner asserts and the record indicates that the establishment of such a date has been twice "set off indefinitely" due to the alleged lack of a presentence investigation report.

We recently declared, in no uncertain terms, that the absence of such a report provides no grounds for the Commission's blatant failure to follow clear statutory requirements. Battis et al. v. Florida Parole and Probation Commission, 386 So.2d 295 (Fla. 1st DCA 1980). In Battis, we noted the frequency with which inmates necessarily sought the aid of this court to order the Commission to act according to the dictates of Chapter 947, Florida Statutes. Yet, despite our clear mandate in Battis, it is apparent that the Commission continues to ignore the requirements of Chapter 947. On nearly a daily basis, inmates still seek this Court's aid to "police" the Commission. We reluctantly find ourselves undertaking this unpleasant task. The Commission's action by failing to establish presumptive parole release dates subsequent to Battis, is evidenced by the recent string of petitions filed in this Court requesting us to order that such a date be set pursuant to the Statutes, Thompson v. Florida Parole and Probation Commission, Case No. ZZ-308 (Order entered January 28 1981) (Fla. 1st DCA); McKinney v. Florida Parole and Probation Commission, Case No. ZZ-387 (Order entered January 28, 1981) (Fla. 1st DCA); Flythe v. Florida Parole and Probation Commission, Case No. ZZ-245 (Order entered January 13, 1981); Jackson v. Florida Parole and Probation Commission, Case No. ZZ-100 (Order entered January 13, 1981) (Fla. 1st DCA); Lasure v. Florida Parole and Probation Commission, Case No. ZZ-61 (Order entered January 13, 1981) (Fla. 1st DCA); Black v. Florida Parole and Probation Commission, Case No. YY-378 (Order entered December 21, 1980) (Fla. 1st DCA); Hahn v. Florida Parole and Probation Commission, Case No. XX-499 (Order entered October 21, 1980) (Fla. 1st DCA); Emory v. Florida Parole and Probation Commission, Case No. YY-120 (Order entered October 29, 1980) (Fla. 1st DCA); Anderson v. Florida Parole and Probation Commission, Case No. YY-207 (Order entered November 13, 1980) (Fla. 1st DCA); Conage v. Florida Parole and Probation Commission, Case No. YY-253 (Order entered November 18, 1980) (Fla. 1st DCA); Jeffrey v. Florida Parole and Probation Commission, Case No. YY-385 (Order entered December 10, 1980) (Fla. 1st DCA); Tripp v. Florida Parole and Probation Commission, Case No. YY-472 (Order entered December 10, 1980) (Fla. 1st DCA); and necessitates the reiteration of our holding in Battis in somewhat stronger terms.

Chapter 947, Florida Statutes (1980), requires the Commission to establish a presumptive parole release date within a certain period of time for each entitled inmate. The chapter contemplates an objective system, Section 947.02, Fla.Stat. (1980); the Commission may exercise its discretion only in limited circumstances with adequate explanation. Sections 947.165, 947.172, Fla.Stat. (1980); Baker v. Florida Parole and Probation Commission, 384 So.2d 746 (Fla. 1st DCA 1980).

While the rules and policy developed by the Commission apparently attempt to afford it the broad discretion it possessed prior to the enactment of the Objective Parole Guidelines Act of 1978, self-imposed informal requirements cannot negate clear statutory dictates. Just as the Commission may not choose an arbitrary term an inmate must serve, then justify it by applying various "aggravations", so too is the Commission prohibited from avoiding its duty altogether by refusing to establish a presumptive parole release date based on the lack of a particular report. Neither Chapter 947 nor the Commission's own rules specifically require a particular report be considered as a prerequisite for establishing a release date. In fact, reports such as post sentence investigation reports written years after their subject offenses were committed may fail to satisfy the requirements of competence and persuasiveness necessary to allow their...