Opinion
No. 92-3319.
November 17, 1993.
Appeal from the Circuit Court, Leon County, P. Kevin Davey, J.
Ronald J. Harper, pro se.
James S. Byrd, Asst. Gen. Counsel, Florida Parole Com'n, Tallahassee, for appellee.
We reverse the order denying appellant's petition for writ of mandamus. When the Florida Parole and Probation Commission established appellant's presumptive parole release date (PPRD) as August 28, 1996, after his parole was revoked, it included 60 months for use of a handgun during the commission of the offense as an aggravating factor. This was error. The same factor had been used in setting appellant's previous PPRD, and the law is clear that the Commission cannot change or modify a PPRD except for new information not available at the time of the initial interview, institutional conduct, or exceptional circumstances. §§ 947.16(5) 947.173(3), Fla. Stat. (1991); Hester v. Florida Parole Comm'n, 619 So.2d 28 (Fla. 1st DCA 1993); Williams v. Florida Parole Probation Comm'n, 515 So.2d 1044 (Fla. 1st DCA 1987); Jackson v. Florida Parole Comm'n, 424 So.2d 930 (Fla. 1st DCA 1983); Gaines v. Florida Parole Probation Comm'n, 463 So.2d 1181 (Fla. 4th DCA), review denied, 475 So.2d 695 (Fla. 1985).
As for the 24-month extension given for the second aggravating factor based upon new information, appellant is not entitled to mandamus relief because the reasons are facially valid, supported by the record, and authorized by statute and rule. See Baker v. Florida Parole Probation Comm'n, 384 So.2d 746, 748 (Fla. 1st DCA 1980) ("Absent a violation of any statute or rule, this Court can review no further under mandamus, as the writ will not lie in any review by this Court of the discretionary acts of the Commission.").
AFFIRMED in part, REVERSED in part, and REMANDED with directions to grant the writ by ordering the Commission to recalculate appellant's PPRD without any aggravation for the use of a firearm while committing the offense.
ALLEN, J., concurs.
LAWRENCE, J., specially concurs with opinion.
I concur because I am bound by the doctrine of stare decisis. I feel in addition that the issue of public safety in paroling violent offenders can be adequately addressed by the Parole Commission's broader discretion in establishing an effective parole release date. Florida Parole Probation Comm'n v. Paige, 462 So.2d 817 (Fla. 1985).
Appellant was initially indicted for first-degree murder of his wife, but pleaded guilty to second-degree murder and was sentenced to 50 years of imprisonment in 1978. He escaped from prison in 1986, remaining at large for almost one year. He was paroled in 1990, and subsequently revoked for violation of his conditions of parole.
Section 947.172, Florida Statutes (1991), governs the establishment of a presumptive parole release date; section 947.1745, Florida Statutes (1991), governs the establishment of an effective parole release date.