Tuff v. State

• Decision Date: 19 May 1999
• Docket Number: No. 98-2950.,98-2950.
• Citation: 732 So.2d 461
• Parties: Herbert Lee TUFF, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

732 So.2d 461

Herbert Lee TUFF, Appellant, v. The STATE of Florida, Appellee.

No. 98-2950.

District Court of Appeal of Florida, Third District.

May 19, 1999.

Rehearing Denied June 16, 1999.

Herbert Lee Tuff, in proper person.

Robert A. Butterworth, Attorney General, and Wendy Benner-Leon, Assistant Attorney General, for appellee.

Before NESBITT, FLETCHER, and SHEVIN, JJ.

NESBITT, J.

Herbert Lee Tuff appeals the denial of his motion for post-conviction relief, which he incorrectly styled as a Rule 3.850 motion. In 1970, Tuff pled guilty to first-degree murder and received a life sentence. Tuff argues that the retroactive application of the 1997 amendment to section 947.174, Florida Statutes, to him was unconstitutional as violative of the Ex Post Facto Clause of the United States and Florida Constitutions. This amendment altered the frequency of subsequent parole hearings for certain prisoners from every two years to every five years. Tuff's claim cannot be raised in a Rule 3.850 motion, as it is time-barred by that rule's two-year limit, nor can it be successfully raised in a Rule 3.800 motion, because a life sentence for first-degree murder is not an illegal sentence. Therefore, we treat Tuff's appeal as a petition for mandamus, and deny the petition for the reasons stated herein.

As stated above, in 1970 Tuff pled guilty to first-degree murder and received a life sentence. In 1979, he was paroled. In 1987, he violated his parole and was returned to prison. He was given a presumptive parole release date of August 30, 1992. However, Tuff accumulated a record of unsatisfactory conduct while in prison, including these infractions: disobeying an order; fighting (two occasions); lying to officials; and possession of contraband (two instances). Therefore, the parole commission set a new presumptive parole release date of December 30, 1997.

On October 27, 1997, the commission conducted an interview with Tuff, after which it decided not to release him on December 30, 1997, because it was unable to find a reasonable probability that, if released, he would conduct himself in a lawful manner. Thereafter, the commission scheduled Tuff's next parole interview for August 2002. The commission's reason for setting the interview for five years hence was that it found it was not reasonable to expect that Tuff would be granted parole in the intervening years due to the seriousness of his crime and his unsatisfactory prison conduct, which had included violent attacks on fellow inmates.

On June 1, 1997, or just before Tuff's October 1997 parole interview, the Legislature enacted chapter 97-289, S.B. 258, Laws of Florida, which changed the frequency of subsequent parole hearings for certain prisoners from every two years to every five years.¹ The relevant portion of this amendment was codified as section 947.174, Florida Statutes (1997):

§ 947.174. Subsequent [parole] interviews.

(1)(b) For any inmate convicted of murder, attempted murder, sexual battery, attempted sexual battery, or who has been sentenced to a 25 year minimum mandatory sentence ..., and whose presumptive parole release date is more than 5 years after the date of the initial interview, a hearing examiner shall schedule an interview for review of the presumptive parole release date. Such interview shall take place within 5 years after the initial interview and once every 5 years thereafter if the commission finds that it is not reasonable to expect that parole will be granted at a hearing during the following years and states the bases for the finding in writing.

Tuff challenges the retroactive application of this statute to him, claiming it to be an Ex Post Facto violation. We disagree.

This particular issue appears to be one of first impression in Florida. The United States Supreme Court's decision in California Department of Corrections v. Morales, 514 U.S. 499, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995), controls. Morales held that an amendment to California law which decreased the frequency of parole hearings for certain prisoners was not an Ex Post Facto violation. See Morales, 514 U.S. at 509,

115 S.Ct. 1597. The Court's rationale was that when such an amendment was narrowly structured and afforded due process protections, such as a hearing and written findings, it did not constitute "increased punishment" but simply represented a change in the method by which parole eligibility dates would be established for a limited class of prisoners. See id. at 506-07, 115 S.Ct. 1597. As the Florida statute at issue here likewise applies only to a limited class of prisoners and affords the procedural safeguards mentioned in Morales, we hold that it likewise does not violate the Ex Post Facto Clause.

In 1980, while on parole for an earlier murder, Morales committed a second murder. He was convicted and sentenced to 15 years to life. The California parole board held his initial parole hearing in 1989 and determined that he was not eligible for parole.² Under the law in place at the time of Morales's crime, he would have been entitled to subsequent parole hearings annually. However, the law was amended in 1981 to allow the parole board to defer these subsequent hearings for up to three years if the prisoner had been convicted of "more than one offense which involves the taking of a life" and if the board "finds that it is not reasonable to expect that parole would be granted at a hearing during the following years and states the bases for the finding." Cal.Penal Code Ann. § 3041.5(b)(2) (West 1982).³ The board determined that it was not reasonable to expect that Morales would be found suitable for parole in 1990 or 1991, and pursuant to the 1981 amendment, it scheduled Morales's next hearing for 1992. See id. at 500, 115 S.Ct. 1597.

Morales challenged the board's decision as unconstitutional, in violation of the Ex Post Facto Clause. The Supreme Court disagreed, holding that the amendment did not increase the "punishment" attached to Morales's crime and, therefore, that there was no Ex Post Facto violation by its retroactive application to Morales. See id. at 507, 115 S.Ct. 1597. Further, the Court found that the amendment was narrowly tailored, as it: (1) affected only a small class of violent prisoners; (2) affected the timing only of subsequent parole hearings (not the initial hearing); (3) called for a hearing on the matter; (4) applied only when the parole board found that the prisoner was unsuitable for parole and that it was "not reasonable to expect that parole would be granted" in the following years; and (5) had to be supported by written findings. See id. at 509, 115 S.Ct. 1597.

The California law challenged (and ultimately upheld) in Morales is quite similar to section 947.174, Florida Statutes (1997). The Florida statute applies to a limited number of inmates, though it does apply to more inmates than the California statute. The Florida statute only applies to inmates convicted of murder, attempted murder, sexual battery, attempted sexual battery, or whose sentence is 25 years minimum mandatory. See § 947.174, Fla. Stat. (1997). Moreover, as in Morales, the Florida statute is narrowly constructed: (1) it affects the timing only of subsequent (not initial) parole hearings; (2) it requires a hearing on the matter; (3) it applies only when the parole commission finds that "it is not reasonable to expect that parole will be granted at a hearing during the following [five] years"; and (4) it requires the commission to state the bases of its decision in writing. See id.

The Florida parole commission's comprehensive written report of its October 27, 1997, interview with Tuff states, in relevant part:

The Commission has decided NOT to authorize your [December 30, 1997] Effective Parole Release Date. After reviewing all the information in your Department of Corrections' file, the Commission has been unable to find that there is a reasonable probability that, if you are released, you will live and conduct yourself as a respectable and law-abiding person and that your release would be compatible with your own welfare and the welfare of society. This action is based upon the following information: ... the inmate was convicted and sentenced ... for a Life term for the offense of murder in the first degree [a description of the facts of the crime follow] .... during his incarceration for [this] offense of conviction, the inmate has a record of unsatisfactory institutional conduct [a description of Tuff's infractions follow]... The Commission finds that your next interview date shall be within 5 years, rather than within 2 years, from your last interview based on your conviction/sentence for Murder in the First Degree and the Commission's finding that it is not reasonable to expect that you will be granted parole during the following years. The basis for this finding is as follows: 1. The inmate has a history of assaultive or violent behavior. 2. Poor, disruptive or assaultive institutional conduct. 3. Any release may cause unreasonable risk to others.

It is apparent that the parole commission complied with the procedural safeguards inherent in section 947.174 and lauded by the Morales Court. Further, although the facts in the instant case differ somewhat from those in Morales, they are similar enough to draw comparisons between the cases. Morales's conviction was of his second murder; he received a sentence of 15 years to life. While Tuff's murder was his first, it was a first-degree murder and Tuff received a life sentence. Morales pled nolo contendere; Tuff pled guilty. Morales was denied parole, and was subjected to California's new three-year frequency for subsequent hearings (vice annual hearings), because of the "heinous nature" of his crime, his "record of violence and assaultive behavior," and because the board found that is was not reasonable to expect he would be granted parole within that three-year period. Tuff was denied parole, and was...