County Criminal Court: CRIMINAL LAW Ė Probation Ė The Florida Parole Commission did not abuse its discretion in revoking Petitionerís parole.Petitionerís Petition for Writ of Certiorari is denied.Michael S. Donovan v. Florida Parole Commission, No. 2011-CA-000575-WS, (Fla. 6th Cir.App.Ct. June 11, 2012).

 

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING AND, IF FILED, DETERMINED

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA, IN AND FOR PASCO COUNTY

APPELLATE DIVISION

 

MICHAEL S. DONOVAN,†††††

††††††††††††††††††††††† Petitioner,

 

v. ††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Case No: ††††† 51-2011-CA-000575-WS

†††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††

 

FLORIDA PAROLE COMMISSION,††††††††††††††††††††††††††††††††††††††††††††

††††††††††††††††††††††† Respondent.†††††††††††††††††††††††††††††††††††††††††††††††††††††††††††

_________________________________/

Petition for Writ of Certiorari and

Petition for Writ of Mandamus

 

Michael S. Donovan,

Petitioner

 

Sarah J. Rumph, General Counsel

Florida Parole Commission

for Respondent

 

 

 

 

ORDER AND OPINION

 

Petitioner challenges the Florida Parole Commissionís order revoking his parole in a Petition for Writ of Certiorari and seeks the transcripts of the hearing in a Petition for Writ of Mandamus.Petitioner claims the only reason his parole was revoked was due to his arrest, which was based on an allegedly false police report made by the victims. Petitioner fails to establish he is entitled to immediate release, as this Court is unable to reweigh the evidence. Since the Florida Parole Commission did not abuse its discretion in revoking Petitionerís parole and are not legally obligated to provide a transcript of the hearing, Petitionersí Petition for Writ of Certiorari and Petition for Writ of Mandamus shall be denied, as set forth below.

 

 

FACTUAL BACKGROUND

Petitioner was convicted of three counts of handling and fondling a child under 16 in Pinellas County case number 95-18332 and sentenced to twenty years for each count to run concurrently.Petitioner was adjudicated as a habitual felony offender and designated a sexual predator.Petitioner was conditionally released on October 1, 2007 subject to certain terms and conditions until October 29, 2015.Petitioner accepted the terms and conditions on September 28, 2007 and October 1, 2007.

A warrant was originally issued when it became known to the Florida Parole Commission that Petitioner did not have a residence which complied with his sex offender conditions.A hearing on the violation was postponed until a proper residence was established.Once a residence was approved, the Florida Parole Commission dismissed its warrant, and Petitioner was released from custody on May 1, 2008.

About one year later, a violation report was received from the Department of Corrections alleging violations of release.In response, the Florida Parole Commission determined reasonable cause and issued a warrant retaking conditional release.The Florida Parole Commission alleged Petitioner had violated Condition 7 by failing to obey all laws, ordinances or statutory conditions of conditional release in that Petitioner unlawfully touched, struck, or caused bodily harm against Andy Schimp on or about May 15, 2009.

Petitioner decided to postpone a final hearing pending the resolution of his new criminal charges.The final hearing was held after the new criminal charges were nolle prossed.The hearing examiner took testimony from five witnesses, including the victim and Petitioner.The arrest report, violation report, warrant, notices of hearing, certificate of conditional release, attorney waiver, and the victim and witness statements taken at the time of the arrest were entered into evidence.The hearing officer found that Petitioner willfully and substantially violated supervision, but recommended reinstatement.The Florida Parole Commission accepted the findings of fact that Petitioner willfully and substantially violated supervision, but decided to revoke supervision in lieu of reinstating it.Petitioner seeks review of the Florida Parole Commissionís order revoking his parole in a Petition for Writ of Certiorari and the Florida Parole Commissionís hearing transcripts in a Petition for Writ of Mandamus.††

 

††† ††††††††††††††††

LAW AND ANALYSIS

Petitioner argues in his Petition for Writ of Certiorari that his parole was improperly revoked based on allegedly false police reports made by the victims.An appellate court, however, may not reweigh the evidence.See, Merck v. State, 975 So. 2d 1054 (Fla. 2007); Board of County Commissioners of Pinellas County v. City of Clearwater, 440 So. 2d 497 (Fla. 2d DCA 1983).Petitionerís argument rests on the conclusion that because the new crime was nolle prossed, this same behavior should not be used against him in the proceedings for revocation.The Florida Parole Commission, however, may consider circumstances and behaviors of the crime in its decision and may revoke supervision if it is shown that Petitioner willfully and substantially violated.Conviction of a new crime is not required to revoke supervision.State ex rel. Roberts v, Cochran, 140 So. 2d 597, 599 (Fla. 1962).The fact finder may determine, independent of a formal conviction, if a law has been violated.Id., at 600.Even an acquittal in a criminal case, does not preclude the fact finder from determining that a violation has occurred based on the same conduct.Russ v. State, 313 So. 2d 758 (Fla. 1975).All that is required to revoke a releasee is that the record contains competent, substantial evidence that he committed the behavior complained of which constituted the law-breaking or condition behavior.Singletary v. State, 290 So. 2d 116, 121 (Fla. 4th DCA 1974).The Florida Parole Commission is only required to prove that a release violated his supervision beyond a reasonable doubt because the releaseeís freedom is only conditional upon compliance with a strict regimen of conditions and rules.Morrissey, et al. v. Brewer, 408 U.S. 471, 478 (1972).

Petitioner presented his defense that he did not commit the battery before the hearing officer.The hearing officer considered testimony from Petitioner, the victim, the arresting officer, the victimís mother, and Petitionerís parole officer.The hearing officer rejected Petitionerís contention, which was based on competent, substantial evidence.It was the hearing officerís function to determine the credibility of the witnesses and resolve any conflicts in evidence.D.M.L. v. State, 773 So. 2d 1216, 1217 (Fla. 3d DCA 2000).The Florida Parole Commission was not authorized to reject the hearing officerís factual findings unless the record was devoid of competent, substantial evidence from which the findings could reasonably be inferred.Tedder v. Florida Parole Commission, 842 So. 2d 1022, 1025 (Fla. 1st DCA 2003).When the Commission accepted the findings of fact that Petitioner was guilty and that the violations were willful and substantial, it was free to reject the recommendation of the examiner to reinstate supervision.A recommendation of the hearing officer is simply thatóa recommendation.See, Lopez v. Florida Parole Commission, 943 So. 2d 199 (Fla. 1st DCA 2006).Based on the hearing officerís findings of fact and determination of guilt, the Florida Parole Commission did not abuse its discretion when it revoked Petitionerís release.See, Tedder, at 1022.Petitionerís Petition for Writ of Certiorari must be denied.

In his Petition for Writ of Mandamus, Petitioner seeks for the Florida Parole Commission to provide him with the transcripts of the revocation hearing.A writ of mandamus is used to compel the performance of a ministerial act that an agency has the clear legal duty to perform.Town of Manalapan v. Rechler, 674 So. 2d 789, 790 (Fla. 4th DCA 1996).This court finds that the Florida Parole Commission does not have a legal duty to provide the requested transcripts of hearings.Adversarial violation hearings conducted by a Parole Commission hearing examiner are not meetings, rather information gathering and due process proceedings at which no final decisions are made, as required by Florida Statute 286.011.See also, Florida Parole Commission v. Thomas, 364 So. 2d 480 (Fla. 1st DCA 1978).Petitioner is not entitled to mandamus relief.It is therefore,

ORDERED AND ADJUDGED that Petitionerís Petition for Writ of Certiorari is hereby DENIED, and Petitionerís Petition for Writ of Mandamus is also hereby DENIED.

 

DONE AND ORDERED in Chambers, at New Port Richey, Pasco County, Florida this 11th day of June 2012.

 

††††††††††† Original order entered on June 11, 2012 by Circuit Judges Stanley R. Mills, Michael F. Andrews, and Daniel D. Diskey.