JOSEPH L. MATTINGLY, APPELLANT,
v.
FLORIDA PAROLE AND PROBATION COMMISSION, APPELLEE
SHIVERS, Judge.
Mattingly seeks review of the Commission’s order establishing a PPRD of November 26, 1985. We reverse and remand.
The record reveals appellant was convicted of three counts of armed robbery, one of which was used as the present offense of conviction. The Commission then aggravated appellant’s presumptive parole release date for two additional counts of armed robbery and for using a firearm in each of the offenses. We find the Commission erred in assessing aggravation time for the use of a firearm. First, factors used in the definition of the present offense of conviction cannot be utilized to aggravate a prisoner’s presumptive parole release date. Rule 23-19.03, FAC; Section 947.165(1). Second, the Florida Parole and Probation Commission rules do not permit additional aggravation for factors included in the definition of other convictions already used as aggravating elements. Accordingly, the order establishing the presumptive parole release date is reversed and the cause remanded to the Commission with instructions to establish a presumptive parole release date consistent with this opinion.
McCORD and MILLS, JJ., concur.
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Callaghan v. State, 462 So. 2d 832 (Fla. 4th DCA 1984)…ction 947.165 that factors used in arriving at the salient factor score and the severity of offense behavior category in parole matters shall not be applied as aggravating circumstances. See also Mattingly v. Florida Parole and Probation Commission, 417 So. 2d 1163 (Fla. 1st DCA 1982). The crime of shooting in a dwelling, of course, necessarily involves use of a firearm; and Callaghan was not convicted of child abuse. Thus, both factors the trial court relied on in deviating from the guidelines were improper.…
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Williams v. Fla. Comm'n on Offender Review, 265 So. 3d 651 (Fla. 1st DCA 2018)