HECTOR LOPEZ, APPELLANT,
v.
FLORIDA PAROLE AND PROBATION COMMISSION, APPELLEE
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Lopez, a second-degree murder convict, challenged a Florida Parole and Probation Commission rule amendment that increased his presumptive parole matrix time from 18-33 months to 60-84 months. The court affirmed the Commission's authority to amend the guidelines and rejected his ex post facto clause argument.
The Commission acted within its statutory authority in revising the guidelines based on its collective experience without requiring statistical data, and the amendment does not violate the ex post facto clause because it constitutes a procedural change that is ameliorative rather than punitive.
[1] A Parole and Probation Commission may revise objective parole guidelines based on its collective experience, even without new statistical data, if the governing statute p…
[2] A statute directing a department to provide data for rule revision allows, but does not require, the obtaining of data before revisions.
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Join FLexlaw to unlock all legal intelligence“the Commission shall ... make any revisions considered necessary by virtue of experience”
Establishes the statutory authority allowing the Commission to revise guidelines based on experience without requiring statistical data
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Join FLexlaw to unlock all legal intelligenceLopez was convicted of second-degree murder in 1977 when parole was discretionary. In March 1979, the Commission enacted objective parole guidelines u…
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PER CURIAM.
Lopez challenged Rule 23-19.05 F.A.C. in a proceeding under § 120.56 Fla.Stat. (1979). The challenge was denied. We affirm.
Lopez was convicted of second degree murder in 1977. At that time parole consideration was in the discretion of the Parole and Probation Commission, § 947.16 Fla.Stat. (1977). Pursuant to § 947.165 Fla. Stat. (1979) the Commission enacted objective parole guidelines effective 20 March 1979. Under these guidelines a prisoner convicted of second degree murder with Lopez’s low offender characteristic would have been considered for parole under a matrix time of 18-33 months. Effective 25 June 1979 the Commission amended the rule so that the matrix time applicable to Lopez was 60-84 months. Lopez was interviewed for parole consideration on 19 July 1979, and his presumptive parole release date was set for 1 May 1984, applying the June rules. Lopez now challenges the amendment of Rule 23-19.05 F.A.C., contending that the March rules should have been used.
Lopez makes two arguments which require discussion. First, he argues that the Commission exceeded its authority by not complying with § 947.165 Fla.Stat. (1979) in not assembling statistical data to determine the need for change or the appropriate changes to make. Second he argues that increasing the matrix times is unconstitutional as a violation of the ex post facto clause.
The Commission relied on its collective experience in the area of parole release dates when it enacted the June amendments. Several months use of the March rules had convinced the Commissioners that the original times were too low. Section 947.165(2) Fla.Stat. (1979) provides that “the Commission shall ... make any revisions considered necessary by virtue of experience.” This is exactly what the Commission did in this case and is clearly within the legislative guidelines. The section goes on to direct the Department of Corrections to provide necessary data to the Commission for rule revision. This, by its plain language allows but does not require the obtaining of data before revisions.
Lopez contends that the alteration of the matrix times is a change in the law which increases the punishment for his crime and this is illegal, Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981). Under the facts of our ease we are convinced that Lopez’s punishment is not increased by the amendment of the PPRD guidelines. At the time of Lopez’s crime, the only expectation that Lopez had regarding parole was that it would be at the discretion of the Commission. The adoption and amendment of objective guidelines is a procedural change which, if anything, is ameliorative, cf. Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977).
AFFIRMED.
MILLS and WENTWORTH, JJ., and OWEN, WILLIAM C., Jr. (Ret.), Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (32 total)
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Overfield v. Fla. Parole & Prob. Comm'n, 418 So. 2d 321 (Fla. 1st DCA 1982)…ay aggravate or mitigate the matrix time, setting a release date above or below the matrix, so long as it states its reasons with particularity. Secs. 947.-172(2), .165(1), Fla.Stat. (1981). See also Lopez v. Florida Parole and Probation Commission, 410 So. 2d 1354 (Fla. 1st DCA 1982). This process is to be contrasted with that addressed in Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981), where statutory changes in gain-time credits automatically reduced, without discretionary decision-makin…
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Britt v. Fla. Parole & Prob. Comm'n, 417 So. 2d 1079 (Fla. 1st DCA 1982)…a matrix time range for his parole release under the rule in effect at the time his presumptive parole release date was set rather than the rule in effect when he committed his crime. We affirm. In Lopez v. Florida Parole and Probation Commission, 410 So. 2d 1354 (Fla. 1st DCA 1982), the appellant had been convicted and was incarcerated at the time the first objective parole guidelines became effective, but was not interviewed until after [*1080] the first amendments to the guidelines which increased the mat…
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Cosme Rodriguez v. Fla. Parole & Prob. Comm'n, 422 So. 2d 336 (Fla. 1st DCA 1982)…affirm. Rodriguez’ crime was committed before the adoption of the objective parole guidelines, see Rodriguez v. State, 379 So. 2d 657 (Fla. 3d DCA 1980). His ex post facto argument is controlled by Lopez v. Florida Parole and Probation Commission, 410 So. 2d 1354 (Fla. 1st DCA 1982). The correct offense characteristic and salient factor score were applied. AFFIRMED. ERVIN and WIGGINTON, JJ., concur.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Weaver v. Graham, 450 U.S. 24 (U.S. 1981)
- Dobbert v. Florida, 432 U.S. 282 (U.S. 1977)