Law v. Florida Parole and Probation Commission, s. AG-229

• Decision Date: 08 March 1982
• Docket Number: Nos. AG-229,AH-89,s. AG-229
• Citation: 411 So.2d 1329
• Parties: Thearthur LAW, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee. Anthony DAVIS, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
• Court: Florida District Court of Appeals

Page 1329

411 So.2d 1329

Thearthur LAW, Appellant, v.FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.

Anthony DAVIS, Appellant, v.FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.

Nos. AG-229, AH-89.

District Court of Appeal of Florida, First District.

March 8, 1982.

Rehearing Denied in AH-89 April 19, 1982.

Rehearing Denied in AG-229 April 23, 1982.

Thearthur Law, pro se.

Anthony Davis, pro se.

Malcolm S. Greenfield and Catherine L. Dickson, Tallahassee, for appellee.

PER CURIAM.

Appellants claim to be seeking judicial review of declaratory statements ¹ made to them by the Florida Parole and Probation Commission(Commission), concerning the criteria used to establish their presumptive parole release dates (PPRD).However, appellants are in fact seeking judicial review of their PPRDs.²The Objective Parole Guidelines Act, § 947.173(1), Fla.Stat.(1981), provides a procedure for Commission review of its action in setting a PPRD and this Court has declared its appellate jurisdiction to review the Commission's final action of reviewing the PPRD once established, pursuant to § 120.68,Fla.Stat.(1981).SeeDaniels v. Florida Parole and Probation Commission, 401 So.2d 1351(Fla. 1st DCA1981).Appellants did not utilize the specific, statutorily created procedure for review, which requires that they appeal their PPRDs within 60 days of Commission action setting the date.Instead, subsequent to the setting of their PPRDs, ³appellants sought declaratory statements from the Commission.They now ask this Court to review their PPRDs when they have not exhausted their administrative remedies.

We have held in other cases, that considerations of orderly administration of justice under the Florida Administrative Procedure Act preclude entertaining collateral attacks of nonfinal agency action when an alternative adequate remedy exists.See e.g., Key Haven Associated Enterprises, Inc. v. Board of Trustees of the Internal Improvement Trust Fund, 400 So.2d 66(Fla. 1st DCA1981);Rice v. Department of Health and Rehabilitative Services, 386 So.2d 844(Fla. 1st DCA1980);State, Department of Health and Rehabilitative Services v. Barr, 359 So.2d 503(Fla. 1st DCA1978); and State, Department of General Services v. Willis, 344 So.2d 580(Fla. 1st DCA1977).Under the particular facts of these cases, the petitions for declaratory statements constitute unnecessary collateral attacks on nonfinal agency orders when those orders were clearly reviewable according to the statutorily prescribed procedure § 947.173(1), Fla.Stat.(1981).This Court could then have conducted a § 120.68 judicial review of the Commission's final action in each of the appellants' cases.⁴See generally, Turner v. Wainwright, 379 So.2d 148(Fla. 1st DCA1980);Florida Institutional Legal Services, Inc. v. Florida Parole and Probation Commission, 391 So.2d 247(Fla. 1st DCA1980);andDaniels v. Florida Parole and Probation Commission, supra.

The Commission may, in its own discretion, answer prisoners' requests for information, but such communications are not final agency action and this Court will not treat them as declaratory statements as described in § 120.565,Fla.Stat.(1981).⁵

We find, under the circumstances of these cases, that we lack jurisdiction to review the Commission's action here.Accordingly, the motions to dismiss are granted.

BOOTH, SHIVERS and JOANOS, JJ., concur.

1Section 120.565,Fla.Stat.(1981), provides that each agency shall establish rules regulating the procedure for entertaining petitions for declaratory statements.Accordingly, the Florida Parole and Probation Commission has promulgated Fla.Admin.Code Rules 23-15.06-15.09 to comply with the Florida Administrative Procedure Act.These rules must be read in conjunction with the limitations imposed upon their use by Fla.Admin.Code Rule 28-4.05, defining what constitutes a declaratory statement.

2Mr. Davis' notice of appeal indicates he is appealing a Commission order establishing his PPRD.Mr. Law's brief argues that the Commission erred in aggravating him for an act which he was not charged with committing.These are issues properly raised by § 947.173(1) review of PPRDs.

3Mr. Davis sought his declaratory statement one month after the...