Spaziano v. Florida Parole Commission, Case No. 1D05-3506 (Fla. App. 6/9/2006), Case No. 1D05-3506.
| Decision Date | 09 June 2006 |
| Docket Number | Case No. 1D05-3506. |
| Parties | JOSEPH ROBERT SPAZIANO, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent. |
| Court | Florida District Court of Appeals |
Terrence E. Kehoe of the Law Offices of Terrence E. Kehoe, and James M. Russ of the Law Offices of James M. Russ, P.A., Orlando, for Petitioner.
Kim Fluharty, General Counsel, and Susan Schwartz, Assistant General Counsel, Florida Parole Commission, Tallahassee, for Respondent.
Inmate Joseph Robert Spaziano petitions for writ of certiorari from an order of the circuit court denying his petition for writ of mandamus in which he challenged respondent Florida Parole Commission's calculation of his presumptive parole release date (PPRD). He also seeks review of the circuit court's order imposing a lien on his inmate trust account to recover appellate filing costs. We deny the petition insofar as it relates to the order denying his claims as to the calculation of his PPRD, but grant it pertaining to review of the order imposing a lien on his inmate trust account.
Before addressing the merits of the petition, we turn first to respondent's argument that Spaziano did not timely file his petition, because he sought review only of the February 2004 Commission order establishing his PPRD, which merely reaffirmed the prior 1999 Commission action, from which he failed to seek review. As a consequence, the Commission argues that the present petition is untimely and barred by the doctrine of laches. We cannot agree. As this court noted in Johnson v. Florida Parole Commission, 841 So. 2d 615, 617 (Fla. 1st DCA 2003), the question of the timeliness of an inmate's petition as directed to the establishment of a PPRD must be raised by the affirmative defense of laches. To prevail on a laches defense, the Commission must show that petitioner's delay in challenging his PPRD was unreasonable, and the Commission was unreasonably prejudiced in responding to the petitioner's claim. See McCray v. State, 699 So. 2d 1366, 1368 (Fla. 1997). In the present case, the circuit court ruled on the merits of the mandamus petition, without addressing the laches defense, and the Commission has failed to assert that petitioner's alleged delay in attacking the PPRD has prejudiced its ability to respond to the claims. Accordingly, we reject its untimeliness objection.
We similarly reject petitioner's claim that he was denied due process of law by the circuit court's refusal to conduct a hearing on his mandamus petition. Among other things, petitioner contends that he filed the petition pursuant to Florida Rule of Civil Procedure 1.630, which governs mandamus actions in the circuit court, and, in that it is an original proceeding, it served as a legal substitute for a plenary appeal, entitling him to an oral argument. We reject this argument. As the court commentary to rule 1.630 observes: "[T]he general nature of the procedure is appellate and presumes that the proceeding is basically an appellate proceeding."
Because, as petitioner acknowledges, his mandamus petition functioned as an appeal from Commission action, and the procedure provided is in the nature of an appellate proceeding, he is not entitled to oral argument in such proceeding. Instead, oral argument "may be permitted," see Florida Rule of Appellate Procedure 9.320, if the court believes oral argument would aid it in understanding the issues. At no time did petitioner file a separate request for oral argument in regard to his mandamus petition. We therefore conclude the failure of the circuit court to conduct a hearing on the mandamus petition does not constitute a violation of a clearly established principle of law resulting in a miscarriage of justice, which is an essential predicate for certiorari relief. See Tedder v. Fla. Parole Comm'n, 842 So. 2d 1022, 1024 (Fla 1st DCA 2003).
Turning to the merits of petitioner's challenge to the Commission's establishment of his PPRD, because the challenge is founded in large measure on a lack of evidentiary support for the reasons given, we find the need to reiterate the basis of our review standard, which is not that applied to a direct appeal of a Commission order, as had formerly existed under the Florida Administrative Procedure Act, see Daniels v. Florida Parole and Probation Commission, 401 So. 2d 1351 (Fla. 1st DCA 1981), but is instead one for certiorari review directed to the order of the circuit court denying the petition for mandamus. Thus, our "[r]eview of a circuit court's denial of a petition for writ of mandamus, when sitting in its appellate capacity, is limited to whether the circuit court afforded due process and observed the essential requirements of law." Frederick v. David, 31 Fla. L. Weekly D716 (Fla. 1st DCA Mar. 7, 2006). Accord Sheley v. Fla. Parole Comm'n, 703 So. 2d 1202, 1206 (Fla. 1st DCA 1997).
Our examination of the record discloses that on August 13, 1975, petitioner was convicted in the Circuit Court of Orange County, Florida, of two offenses: forcible carnal knowledge and aggravated battery. He received a life sentence as to the former offense, and a consecutive five-year sentence for aggravated battery. In 1976, in Seminole County, petitioner was convicted of first-degree murder and sentenced to death. Subsequently, based on newly discovered evidence, the judgment and sentence for murder were vacated and, in November 1998, petitioner entered a nolo contendere plea to the lesser offense of second-degree murder, for which he received a 23-year sentence, with credit applied for all of the time previously served on the first-degree murder conviction.
On March 18, 1999, the Commission set a PPRD of April 28, 2060, which included a salient-factor score of 180 months, the maximum matrix time range for the primary conviction of forcible carnal knowledge, which is that assigned for a level-five offense-severity designation. The salient-factor score was increased by adding 840 months based on five aggravating factors. Petitioner contends the reasons provided for each of the five factors are not supported by the record.
First, the Commission added 120 months for the consecutive five-year sentence for aggravated battery as a multiple separate offense to that of forcible carnal knowledge, without regard to the fact that the maximum matrix time range for an aggravation of a third-degree felony1 was 48 to 64 months. Although the 120-month assessment was in excess of the maximum matrix time range for a third-degree felony, the Commission rules permit aggravations in excess of the matrix time range when, among other things, "[t]he offense involved multiple separate offenses." See Fla. Admin. Code R. 23-21.010(5)(a)1.h. The five-year consecutive sentence is clearly a multiple separate offense to the primary offense of forcible carnal knowledge. See Fla. Admin. Code R. 23-21.008.
While the amount of the aggravation is considerably in excess of the maximum amount of aggravation provided by the Commission's rule, the aggravation is not based upon an illegal ground or improper consideration. See Fla. Parole Comm'n v. Huckelbury, 903 So. 2d 977, 978 (Fla. 1st DCA), review denied, 913 So. 2d 596 (Fla. 2005). As a consequence, petitioner has failed to demonstrate that the circuit court's ruling as to factor one constitutes a departure from the essential requirements of law.
The Commission also added 180 months based on petitioner's second-degree murder conviction, with the following explanation: "Multiple Separate Offense," and included a reference to the Seminole County murder conviction. Petitioner argues that the facts underlying the reason do not support it, because he had completed his sentence for second-degree murder when he was sentenced for such crime on November 6, 1998, by application of the credit given him. Moreover, he argues the conviction for second-degree murder in Seminole County was a totally separate and distinct conviction from those occurring in Orange County for the offenses of forcible carnal knowledge and aggravated battery. In fact, petitioner's murder offense occurred approximately six months before those for which he was prosecuted in Orange County. As a consequence, he continues, the 180-month aggravating factor must be vacated because the second-degree murder conviction cannot be deemed a multiple separate offense. Neither, he concludes, can the aggravation be justified by any other theory, such as prior criminal record.
Although we agree with petitioner that the record does not support...
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