McKahn v. Florida Parole and Probation Commission, AB-493

• Decision Date: 09 June 1981
• Docket Number: No. AB-493,AB-493
• Citation: 399 So.2d 476
• Parties: Alcene McKAHN, Petitioner, v. FLORIDA PAROLE AND PROBATION COMMISSION, Respondent.
• Court: Florida District Court of Appeals

Page 476

399 So.2d 476

Alcene McKAHN, Petitioner, v. FLORIDA PAROLE AND PROBATION COMMISSION, Respondent.

No. AB-493.

District Court of Appeal of Florida, First District.

June 9, 1981.

Alcene McKahn, pro se.

Malcolm S. Greenfield, Tallahassee, for respondent.

ON PETITION FOR WRIT OF MANDAMUS

ERVIN, Judge.

Petitioner, an inmate, filed an original petition for writ of habeas corpus, alleging The Florida Parole and Probation Commission (hereafter referred to as the Commission) erred in setting his presumptive parole release date. Having received the petition seeking habeas corpus relief prior to the filing of our decision in Daniels v. Florida Parole & Probation Commission, 401 So.2d 1351 (Fla. 1st DCA 1981), we treated it as a petition for writ of mandamus, pursuant to Florida Rule Appellate Procedure 9.040(c), and considered its merits. See Moore v. Parole and Probation Commission, 289 So.2d 719 (Fla.1974).

The petition and its attachments show that on January 18, 1980, petitioner was convicted for possession of three counts of a controlled substance (i. e., heroin, cocaine and dilaudid) and was given three five-year concurrent sentences. It also alleged that on December 17, 1980, the Commission reviewed a recommended parole date of February 16, 1982 and revised that date to September 17, 1982. The latter date was determined by taking into account a combination of various factors, including a salient factor score of zero, reflecting no significant criminal history, and an offense characteristic of "very high ... drugs: ... hard drugs possession with intent to distribute/sale (not exceeding $100,000)." The maximum matrix range term was derived by referencing these factors to the objective parole criteria guidelines, set out in Florida Administrative Code Rule 23-19.05, and the Commission aggravated that term by adding 13 months for a concurrent sentence. ¹

In his petition, McKahn contests two of the Commission's actions. He first claims that the Commission's rule treating concurrent sentences as equivalent to consecutive sentences for purposes of "aggravation" undermines the judicial sentencing function and is an invalid exercise of delegated legislative authority. See Fla. Admin.Code Rule 23-19.01(5). We decline to examine this issue by extraordinary writ, since ordinary avenues of appeal have not been exhausted. Comer v. Florida Parole and Probation Commission, 388 So.2d 1341 (Fla. 1st DCA 1980).

He next contends that his offense characteristic was incorrectly established. The documents in his appendix substantiate that he had been charged, convicted and sentenced only for simple possession of a controlled substance. Intent to distribute or sell drugs was nowhere reflected in petitioner's arrest affidavit, the informations filed against him, or the judgment and sentence of the court. Thus, petitioner asserts that his offense characteristic was excessively scored, and that under the Commission's objective system, the offense should have been scored in the range "low moderate ... simple possession of 'hard drugs' (small quantity, personal use)." ²

After reviewing the petition, and finding no factors explained on the examiner's worksheet, or on the final order of the Commission indicating that petitioner's actual offense behavior was more severe than simple possession of hard drugs, on March 26, 1981, we issued a show cause order to the Commission directing it to respond to petitioner's claim within 20 days. Upon receiving no response, we next ordered the Commission to reduce petitioner's offense characteristic to "low moderate," and to reduce his presumptive parole release date accordingly. The day following the issuance of our second order, the Commission responded to our earlier inquiry, stating that it had, at a public meeting held on April 1, 1981, altered petitioner's offense characteristic to "low", ³ changed the salient factor score from "0" to "one", ⁴ added another aggravating factor of eight months, ⁵ and reached the same presumptive parole release date as previously entered.

The Commission is apparently of the belief that it possesses the discretion to add factors, without a good cause explanation, after its final order has been entered establishing a presumptive parole release date, so long as the previously entered date is unchanged by the later order. This court cannot agree and finds that the statutes clearly point to a different conclusion.

Under the circumstances, the Commission was vested with no discretion to change the offense characteristic, or the salient factor score, or to add an additional aggravating factor in its determination of a parole date. Section 947.172(3) unambiguously states that a presumptive parole release date "shall become binding on the commission when agreement on a ... date is reached." The only explicitly stated exceptions to the binding effect of the date entered are "for reasons of institutional conduct or the acquisition of new information not available at the time of the initial interview." Section 947.16(4). Additionally, we are of the view that Section 947.16(4) should be considered in pari materia with Section 947.173(3), permitting the Commission to modify a parole release date "for good cause in exceptional circumstances." The record fails to show the applicability of any exceptional circumstance. What the Commission has sought to do here is to circumvent the effect of the statute precluding the changing...