TOMMY W. WHITE, APPELLANT,
v.
FLORIDA PAROLE AND PROBATION COMMISSION ET AL., APPELLEES
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A convicted robber challenges the Florida Parole and Probation Commission's rejection of a parole hearing examiner's recommendation, arguing that the Commission's decision to impose an additional 36 months of incarceration based on his refusal to cooperate in recovering stolen money violated his right to remain silent. The court affirms, holding that the Commission properly applied its guidelines allowing consideration of a prisoner's failure to make restitution.
The court held that the Commission's decision does not violate the appellant's Fifth Amendment rights because the Commission properly applied its administrative rule permitting consideration of a person's failure or refusal to make restitution where able to do so, and the evidence established the appellant had control of and capability to recover the stolen funds.
[1] A parole commission may consider an offender's refusal to cooperate in the recovery of stolen money as an aggravating factor justifying a longer presumptive parole releas…
[2] An offender's failure or refusal to make restitution, where able to do so, is a valid reason for parole decisions above the matrix time-frames contained in objective paro…
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Join FLexlaw to unlock all legal intelligence“The person has failed or refused to make restitution where he was able to do so.”
The specific administrative rule that authorized the Commission to consider restitution refusal as an aggravating factor in parole decisions.
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Join FLexlaw to unlock all legal intelligenceAppellant White was convicted of robbery and sentenced to 45 years in December 1976. In September 1979, a parole hearing examiner recommended a presum…
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PER CURIAM.
Appellant was charged with and convicted of robbery. The trial court sentenced him on December 21, 1976, to a term of forty-five years and we affirmed.
Thereafter appellee caused a hearing examiner on September 27, 1979, to hold an initial interview with appellant pursuant to Section 947.172(1), Florida Statutes (1979). The examiner recommended on the Objective Parole Guidelines Worksheet that appellant’s presumptive parole release date be set at November 27, 1979. Appellee rejected the recommendation and set November 20, 1984, as appellant’s presumptive parole release date pursuant to Section 947.172(3), Florida Statutes (1979), Fla.Admin.Code Rule 23-19.03.
Following commission review, appellant filed a petition for writ of mandamus, attacking the following circumstance which appellee concluded as warranting thirty-six (36) additional months of incarceration:
The offender refused to cooperate in recovery of the stolen money although he had the capability to do so, and was offered sentencing concessions by the State if he would assist in the recovery.
Appellant argues that the foregoing aggravating circumstance violated his right to remain silent.
What appellant overlooks is Fla.Admin. Code Rule 23-19.03(l)(c)(l) which expressly provides that in decisions above the matrix time-frames contained in the Objective Parole Guidelines Worksheet, one of the reasons related to the Aggravating Offense Factor is the following:
The person has failed or refused to make restitution where he was able to do so.
The evidence at appellant’s trial established that $54,110 was taken from a Brinks’ employee en route from a department store to the Brinks’ truck. The employee identified appellant as the armed offender who stated to him, “All right. This is it. Let me have the bag.” The totality of the circumstances shows that appellant had control of the stolen money. That he failed or refused to make restitution is a factor which is completely and directly within the foregoing rule of the appellee-commission. Having no quarrel with the application of the rule in this case, we affirm.
AFFIRMED.
LETTS, C. J., and MOORE and GLICK-STEIN, JJ., concur.
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Bizzigotti v. Fla. Parole & Prob. Comm'n, 410 So. 2d 1360 (Fla. 1st DCA 1982)…(l)(c)l, “failed or refused to make restitution where he was able to do so,” as aggravating circumstances. Under appropriate facts, we have no doubt that the use of these factors would be proper. See White v. Florida Parole and Probation Commission, 394 So. 2d 472 (Fla. 4th DCA 1981); Roberts v. United States, supra, footnote 9. Nevertheless, due primarily to procedural deficiencies contributed to by both parties, we have encountered some difficulties in arriving at a solution in the case before us. We obser…
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Stewart v. Fla. Parole & Prob. Comm'n, 419 So. 2d 1157 (Fla. 1st DCA 1982)…ty, the commission did not err in considering his failure to make restitution as an aggravating factor. See Bizzigotti v. Florida Parole and Probation Commission, 410 So. 2d 1360 (Fla. 1st DCA 1982); White v. Florida Parole and Probation Commission, 394 So. 2d 472 (Fla. 4th DCA 1981); Fla.Admin.Code Rule 23-19,03(l)(c)(l). We note that failure to make restitution is not an element of robbery. § 812.13(1), Fla.Stat. (1979). Cf. Bell v. State, 394 So. 2d 979 (Fla.1981). Accordingly, the commission’s action is…