Roberson v. Florida Parole & Probation Com'n, s. 61653

• Decision Date: 15 September 1983
• Docket Number: 61210,Nos. 61653,s. 61653
• Citation: 444 So.2d 917
• Parties: John H. ROBERSON, Petitioner, v. FLORIDA PAROLE & PROBATION COMMISSION, Respondent. FLORIDA PAROLE & PROBATION COMMISSION, Petitioner, v. DISTRICT COURT OF APPEAL, FIRST DISTRICT, State of Florida, Respondent.
• Court: Florida Supreme Court

Page 917

444 So.2d 917

John H. ROBERSON, Petitioner, v. FLORIDA PAROLE & PROBATION COMMISSION, Respondent.

FLORIDA PAROLE & PROBATION COMMISSION, Petitioner, v. DISTRICT COURT OF APPEAL, FIRST DISTRICT, State of Florida, Respondent.

Nos. 61653, 61210.

Supreme Court of Florida.

Sept. 15, 1983.

Rehearing Denied Feb. 8, 1984.

Bennett H. Brummer, Public Defender and Rory S. Stein, Asst. Public Defender, Eleventh Judicial Circuit, Miami, for petitioner, Roberson.

Enoch J. Whitney, Gen. Counsel, and Catherine L. Dickson and Rosa H. Carson, Asst. Gen. Counsels, Florida Parole and Probation Com'n, Tallahassee, for Florida Parole & Probation Com'n.

No participation, for respondent, Dist. Court of Appeal, First Dist.

Ronald D. Combs, Senior Staff Attorney and Richard A. Belz, Executive Director, Florida Institutional Legal Services, Inc., Gainesville, amicus curiae, on behalf of the respondent, District Court of Appeal, First District of Florida.

Michael J. Minerva, Gen. Counsel, Dept. of Corrections, Tallahassee, for Dept. of Corrections, State of Fla., amicus curiae.

EHRLICH, Justice.

These two cases have reached this Court via different routes. Roberson v. Florida Parole & Probation Commission, 407 So.2d 1044 (Fla. 3d DCA 1981), is here for review alleging conflict with Daniels v. Florida Parole & Probation Commission, 401 So.2d 1351 (Fla. 1st DCA 1981). Florida Parole & Probation Commission v. District Court of Appeal, our Case No. 61,210, is an original action seeking a writ of prohibition to the First District Court of Appeal. The issue in both cases is the jurisdiction of the district court to hear administrative appeals under section 120.68, Florida Statutes (1981), emanating from decisions affecting parole dates made by the Parole and Probation Commission (the Commission). We have jurisdiction. ¹ We hereby quash the decision in Roberson and deny the writ.

Roberson is an inmate in a Florida prison in Homestead. In October 1981 he filed a timely notice of appeal in the Third District Court of Appeal pursuant to section 120.68, Florida Statutes (1981), ² requesting review of the determination by the Commission of his presumptive parole release date. His grievance with the procedure concerned the use by the Commission of allegedly false information in establishing his release date. The Third District refused to hear the appeal, predicating its action on the argument that prisoners are excluded from appealing under section 120.68, because of the language in section 120.52(10)(d), Florida Statutes (1981). ³

The Roberson holding directly conflicts with Daniels on the issue of jurisdiction. The First District found that it had the power to review decisions of the Parole Commission regarding parole release dates because such decisions were deemed final agency action adversely affecting the petitioners.

The petition for writ of prohibition sought by the Commission is brought to this Court to halt implementation of the First District's decision in Daniels. The Commission in its petition propounds the argument of the Third District found persuasive in Roberson. The substance of this is that because the legislature passed section 120.52(10) ⁴ prohibiting prisoners from being parties to proceedings under section 120.54(16) or 120.57, ⁵ the legislature intended to preclude all prisoner actions from the purview of any part of chapter 120. Specifically, the Commission argues, appellate review under section 120.68 is not available to prisoners. We disagree.

To arrive at an understanding of this holding requires a reconstruction of legislative and judicial events. In 1974 this Court issued the seminal decision of Moore v. Florida Parole & Probation Commission, 289 So.2d 719 (Fla.), cert. denied, 417 U.S. 935, 94 S.Ct. 2649, 41 L.Ed.2d 239 (1974). In that case, we found jurisdiction to review the discretionary acts of the Commission by means of the writ of mandamus. Mandamus jurisdiction was substantially changed by that decision because we removed the conceptual stumbling block that only ministerial acts were subject to review. Indeed, it was the discretionary acts of the Commission that were allegedly so abusive of the law that led this Court to broaden the scope of review.

In that same year the legislature, in an attempt to control what it termed the "shadow government," ⁶ drafted and passed into law a major revision of the Administrative Procedure Act. ⁷ This so-called "shadow government," a government of agency rules and regulations, was the natural consequence of a governmental branch that had experienced unprecedented expansion and growth. ⁸ Its wide array of administrative requirements seemed to confuse and intimidate the citizenry, who apparently felt they had almost no control or voice in the actions taken by this branch. Among other things, this legislation was designed to cure the alleged ills of this "shadow government" by making the rule-making and adjudicative procedures uniform from agency to agency, by bringing the process out into the open so that citizens would be aware of how rules were made, and by allowing citizen participation in the promulgation thereof. The APA was intended to apply to all agencies unless specifically exempted under the Act. Graham Contracting, Inc. v. Department of General Services, 363 So.2d 810 (Fla. 1st DCA 1978), cert. denied, 373 So.2d 457 (Fla.1979). Additionally, it presented a more streamlined means whereby individuals who felt that their substantial interests were being affected by agency action could challenge the agency action in administrative proceedings. This encouraged consistency and fairness in agency action, insured by a clarified and comprehensive scheme for judicial review. Thus the light was beginning to shine on the "shadow government."

In 1977 the First District Court of Appeal entertained and responded to the case of Florida Department of Offender Rehabilitation v. Jerry, 353 So.2d 1230 (Fla. 1st DCA), cert. denied, 359 So.2d 1215 (Fla.1978). Jerry was an inmate at a state correctional institution and was subjected to disciplinary confinement. He challenged under chapter 120 the rule under which he was disciplined. That court's decision, though finding that the instant prisoner had no standing to challenge the rule, indicated that chapter 120 would apply to prisoners.

The Department of Offender Rehabilitation immediately sought an exemption from the Administration Commission under section 120.63, Florida Statutes. ⁹ This was a temporary exemption and the department then sought legislative changes. This resulted in adding to the statute the language now relied on by the Commission. ¹⁰

This Court's examination of the documents and materials in the archives supports the conclusion that section 120.52(10) does nothing more than what it says that it does: Prisoners cannot be parties to proceedings pursuant to section 120.54(16) and section 120.57. ¹¹ We hold that the rest of the provisions of that chapter are therefore clearly applicable to prisoners. All of the material reviewed points to this result and we will not give it a broader prohibition than truly intended.

Furthermore, following Moore, this Court laid to rest the Commission's argument that it is a creature of the executive branch and immune to the dictates of the legislature. Owens v. State, 316 So.2d 537 (Fla.1975). Subsequently, after an extensive investigation concerning the abuse of discretion involving the granting of parole, ¹² the legislature passed the Objective Parole Guidelines Act of 1978, chapter 78-417, Laws of Florida. The intent of that act was to cure the abuses of unbridled discretion, and present a fair and objective set of standards applicable to parole matters. § 947.002, Fla.Stat. (1981).

Despite this concerted effort, abuse of discretion or misinterpretation of the law continued to creep into the process. See, e.g., McKahn v. Florida Parole & Probation Commission, 399 So.2d 476 (Fla. 1st DCA 1981). The First District was constantly policing the work of the Commission either by mandamus or habeas corpus. See James v. Florida Parole & Probation Commission, 395 So.2d 197 (Fla. 1st DCA 1981); Battis v. Florida Parole & Probation Commission, 386 So.2d 295 (Fla. 1st DCA 1980).

It was therefore inevitable that the two legislative acts should meet, and they did in Daniels. With the issue squarely before the district court it was found, and correctly so, that the appellate review granted by section 120.68 was the vehicle available to review Commission determinations concerning parole made under the governmental "machinery" provided for by chapter 947. We find that decision to be a proper one.

We agree with the district court's analysis of the application of the review power to agency action, and its entire interpretation of parties and proceedings subject to review. We adopt in full its logical rationale. (Daniels, 401 So.2d at 1352-57).

Looking beyond our own jurisdiction, we find that appellate review of parole decisions is nothing new or radical. See Foggy v. Arizona Board of Pardons & Paroles, 108 Ariz. 470, 501 P.2d 942 (1972); Willard v. Ferguson, 358 S.W.2d 516 (Ky.1962); Mastriana v. New Jersey Parole Board, 95 N.J.Super. 351, 231 A.2d 236 (1967).

We return to the wisdom of Moore wherein we said, "[w]hile there is no absolute right to parole, there is a right to a proper consideration for parole," 289 So.2d at 720, because:

[a] prisoner is not wholly stripped of constitutional protections when he is imprisoned for a crime. No iron curtain is drawn between the Constitution and the inmates of prisons in this country. Consideration for parole is an aspect of liberty to which at least minimal due process must extend.... It has been said, government action must not only be fair, it must appear to be fair. We agree that, "one of the best procedural protections against arbitrary exercise of discretionary power lies in the requirement of findings and reasons that...