Opinion
No. 1D21-3871
05-18-2022
Paul CLIFFORD, Petitioner, v. FLORIDA COMMISSION ON OFFENDER REVIEW, Respondent.
Paul Clifford, pro se, Petitioner. Rana Wallace, General Counsel, Florida Commission on Offender Review, Tallahassee, for Respondent.
Paul Clifford, pro se, Petitioner.
Rana Wallace, General Counsel, Florida Commission on Offender Review, Tallahassee, for Respondent.
Tanenbaum, J.
Paul Clifford seeks review of the trial court's order dismissing his complaint for mandamus as barred by the statute of limitations. In his complaint, Clifford prayed that the trial court issue a writ compelling the Florida Commission on Offender Review (previously known as the Florida Parole Commission ) to "re-examine and correctly re-assess" his presumptive parole release date ("PPRD"), which the commission initially established in September 2008 pursuant to section 947.172, Florida Statutes. The trial court's final order made a threshold determination based on the face of Clifford's pleading and was not rendered by the trial court in its review capacity. In turn, we treat this case as a direct appeal. Compare Fla. R. App. P. 9.030(b)(1)(A), with Fla. R. App. P. 9.030(b)(2)(B) ; see also Fla. R. App. P. 9.040(c) ; cf. City of Deerfield Beach v. Vaillant , 419 So. 2d 624, 626 (Fla. 1982) ("We hold that where full review of administrative action is given in the circuit court as a matter of right, one appealing the circuit court's judgment is not entitled to a second full review in the district court.").
See ch. 2014-191, Laws of Fla.; § 20.32(1), Fla. Stat.
That said, the complaint for extraordinary relief was properly subject to dismissal without issuance of an alternative writ. See Fla. R. Civ. P. 1.630(a), (d)(2), (e). The limitation period for bringing this type of extraordinary writ proceeding is one year. See § 95.11(5)(f), Fla. Stat. Clifford argues that his pleading, filed April 23, 2021, fell within that period because the last commission action on his PPRD occurred on May 21, 2020, when it modified his PPRD to thirty-six months earlier than his initial PPRD. Clifford unfortunately fails to understand the nature of the relief he sought. Based on how the law operates with respect to PPRDs, either he wanted the trial court to compel the commission to reconsider factors it did not have the authority to consider at its most recent hearing; or he based his request for relief on an action the commission took years earlier, putting him far outside the limitation period. We briefly explain.
The commission establishes a PPRD based on an initial interview and consideration of "objective parole guidelines" and "matrix time ranges." See §§ 947.16, 947.172, Fla. Stat. Once the commission establishes the initial PPRD, a prisoner has only sixty days to challenge it. See § 947.173(1), Fla. Stat. After that, the initial PPRD becomes "binding." § 947.172(3), Fla. Stat. There are periodic "subsequent interviews," but these are "limited to determining whether or not information has been gathered which might affect the presumptive parole release date." § 947.174(1)(c), Fla. Stat. In turn, the PPRD "may not be changed except for reasons of institutional conduct or the acquisition of new information not available at the time of the initial interview." § 947.16(5), Fla. Stat.
In circumstances such as Clifford's, mandamus is a form of relief limited to "whether certain matters were and should have been considered by" the commission; it "would not command" a particular outcome of the commission's exercise of discretion, only that it reconsider the exercise of its discretion without improper considerations. Moore v. Fla. Parole & Prob. Comm'n , 289 So. 2d 719, 720 (Fla. 1974). According to the documentation attached to Clifford's complaint, the commission based its modification of Clifford's PPRD on the latest "subsequent interview," which revealed positive institutional conduct since the prior "subsequent interview." The allegations in Clifford's complaint, however, went beyond the commission's limited consideration of this conduct and focused primarily on how his initial PPRD was improperly based on certain aggravating aspects of his underlying offense of conviction. Clifford failed to articulate a prima facie basis for this relief.
On the one hand, if Clifford was addressing only the process by which the commission modified his PPRD in 2020 (as he argued he was in response to the commission's statute of limitations defense), then he in essence was claiming that the commission incorrectly calculated his modified PPRD based on offense conduct aggravators that originally had been considered in determining the initial PPRD. This approach would put the relief Clifford sought outside what the commission could be ordered to consider as part of a PPRD modification. See § 947.16(5), Fla. Stat.; see also Dornau v. Fla. Parole & Prob. Comm'n , 420 So. 2d 894, 895 (Fla. 1st DCA 1982) (refusing to address prisoner's contention that the commission erred in its modification of his PPRD because it "relate[d] to the establishment of his initial PPRD" and the scope of a subsequent hearing is limited to consideration of information obtained since the initial interview).
On the other hand, if Clifford in fact really was seeking to compel the commission to reconsider its initial calculation of his PPRD without what he contended were improper conduct aggravators, then his complaint essentially addressed commission action taken in 2008, not 2020. Notably, Clifford admitted in his complaint that he was seeking mandamus because the "subsequent interview" process left him no way to attack what he called the commission's "improper considerations" when initially calculating his PPRD. If we take this concession in his pleading at face value (rather than his after-the-fact reliance on the commission's 2020 action to avoid application of the statute of limitiations), Clifford indeed filed his complaint many years after the expiration of his time for doing so.
Either way, the trial court was correct to dismiss the complaint rather than issue an alternative writ.
AFFIRMED .
Roberts and Osterhaus, JJ., concur.