No. UU-75.District Court of Appeal of Florida, First District.
May 28, 1982.
Petition for review from the Parole and Probation Commission.
Ronald D. Combs of Florida Institutional Legal Services, Inc., Orlando, for petitioner.
Rosa H. Carson, Asst. Gen. Counsel, Tallahassee, for Florida Parole and Probation Com’n.
This cause is before us on review from a final order of the Florida Parole and Probation Commission (Commission) setting petitioner’s presumptive parole release date (PPRD) at February 29, 2000. That date is the same date previously set by the Commission on May 9, 1979. Subsequently, petitioner filed for and received a review under Section 947.173(1), Florida Statutes (1979), which resulted in the Commission lowering his salient factor score and changing his offense characteristic from kidnapping to false imprisonment. This resulted in a reduction of the matrix time range applicable to petitioner from 192-244 months to 24-39 months. However, in order to more accurately reflect the severity of petitioner’s offenses resulting in his present confinement, the Commission added aggravations, thereby increasing the length of time that petitioner would have to remain in prison before being paroled and ultimately resulting in no change in the PPRD originally set.
Petitioner contends that the Commission’s action violated Section 947.172(3), Florida Statutes, and McKahn v. Florida Parole and Probation Commission, 399 So.2d 476 (Fla. 1st DCA 1981). We find this contention to be without merit. The aggravations to petitioner’s PPRD were added prior to this court’s review of the Commission action to correct what the Commission acknowledged to be error. Unlike McKahn, these changes are not contrary to any order of this court entered in this case.
In addition, we find that the Commission had good cause to add the aggravations. Petitioner’s career in the penal institutions of this state begins of record in 1972, when petitioner pleaded guilty to third degree murder and was placed in the custody of the Department of Youth Services. He was 16 years old at the time. In April of 1975, petitioner and another juvenile ran away from the Putnam County START Center, by shooting the director and taking a portion of his gun collection and his automobile. They then robbed, at
gunpoint, some people in their home and abducted a young man. Next, they rode a bus to Chicago, where they robbed a cab driver and were arrested. Finally, after being returned to Florida to answer the charges lodged against him, while being held at the Putnam County jail in May of 1976, petitioner escaped from that facility. He received sentences totaling 100 years for the above crimes.
However, we find that the Commission erred in: (1) considering a conviction which was later vacated in setting the PPRD;
and (2) failing to use the armed robbery conviction in setting the severity level, contrary to Section 947.165(1), Florida Statutes (1979), and Florida Administrative Code Rule 23-19.01(5).
Accordingly, the Commission is ordered to review petitioner’s file and establish a PPRD using the guidelines in effect at petitioner’s Section 947.173(2) review, which need not be the same as the PPRD previously established.
BOOTH, SHIVERS and JOANOS, JJ., concur.
(Fla. 1st DCA 1982):
In McKahn this court ordered the Commission to reduce prisoner’s offense characteristic and to reduce the erroneous PPRD previously assigned to the prisoner. Instead of complying with this court’s order, however, the Commission in McKahn added an aggravating factor and awarded the same PPRD as the Commission had previously set.
(Fla. 1st DCA 1982).
“The objective parole guidelines shall be . . . based on the seriousness of offense and the likelihood of favorable parole outcome.”
Fla. Admin. Code Rule 23-19.01(5) provides:
“If present offense of conviction involved multiple separate offenses, the severity level shall be based on the most serious of the offenses, and the other offenses may be used as aggravating factors.” Although the Commission is not required to consider the sentences imposed by the trial judge, it is notable in this case that petitioner received a 75-year sentence for the first degree felony conviction for armed robbery and only a 15-year sentence for the second degree felony conviction for kidnapping/false imprisonment. When the Commission changed the style of petitioner’s offense from kidnapping to false imprisonment, it was error not to utilize the armed robbery conviction as the offense characteristic. Under Fla. Admin. Code Rule 23-19.05, armed robbery with petitioner’s salient factor score of seven, carries a matrix time range of 32-57 months, a potential increase of 18 months more than the matrix time range for false imprisonment.