Opinion
No. AK-225.
February 3, 1983.
Appeal from the Parole and Probation Commission.
Leo Woulard, pro. per.
Malcolm H. Greenfield, Gen. Counsel, and John C. Courtney, Asst. Gen. Counsel, Florida Parole and Probation Com'n, Tallahassee, for appellee.
Woulard appeals from an order of the Florida Parole and Probation Commission (FPPC) establishing a presumptive parole release date (PPRD). He raises two issues: (1) whether the PPRD so established violates ex post facto considerations by setting a date in accordance with parole guidelines adopted subsequent to the date of the offense, and (2) whether the FPPC violated the due process clause of the Florida and United States constitutions by not giving him prior notice of the guidelines before they were adopted. We affirm the commission's order.
This Court has previously rejected appellant's initial contention and approved such a procedure for establishing a PPRD. See Overfield v. Florida Parole and Probation Commission, 418 So.2d 321 (Fla. 1st DCA 1982) and May v. Florida Parole and Probation Commission, 424 So.2d 122 [8 FLW 73] (Fla. 1st DCA 1982).
Woulard is also in error as to the second issue he raises. It appears there is no general constitutional right to notice of a rule change. See Hunter v. Florida Parole and Probation Commission, 674 F.2d 847, 848 (11th Cir. 1982); Staton v. Wainwright, 665 F.2d 686, 688 (5th Cir. 1982), cert. denied, 456 U.S. 909, 102 S.Ct. 1757, 72 L.Ed.2d 166 (1982). Moreover, there has been no violation of the notice requirements of Section 120.54(1)(a), Florida Statutes (1981). See Adams, et al. v. Florida Parole and Probation Commission, 422 So.2d 953 (Fla. 1st DCA 1982).
AFFIRMED.
MILLS, J., concurs.
ERVIN, J., concurs in part and dissents in part with written opinion.
I agree with the majority that the circumstances of this case do not violate due process protections as they relate to the failure to give Woulard notice of the proposed rule change. I would, however, reverse the presumptive parole release date (PPRD), because, in my judgment, the Commission's reliance on guidelines adopted after the date of the crime in setting the PPRD is contrary to the constitutional proscription against ex post facto laws. Without belaboring the point, I would adopt the well-reasoned dissent of my Brother Shivers in May v. Florida Parole Probation Commission, 424 So.2d 122 (Fla. 1st DCA 1982). Judge Shivers' dissent relied primarily upon the opinions of Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981), and of Welsh v. Mizell, 668 F.2d 328 (7th Cir. 1982), cert. denied, ___ U.S. ___, 103 S.Ct. 235, 74 L.Ed.2d 186 (1982). I would add as further support for my position the cases of Marshall v. Garrison, 659 F.2d 440, 445 (4th Cir. 1981), and Geraghty v. U.S. Parole Commission, 579 F.2d 238, 266 (3d Cir. 1978), vacated and remanded on other grounds, 445 U.S. 388, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980). I consider those four cases form the view that parole guidelines are subject to ex post facto prohibitions. Like Judge Shivers, I would therefore recede from prior opinions of this court holding that a change in the matrix rule is not subject to ex post facto considerations, specifically, Overfield v. Florida Parole Probation Commission, 418 So.2d 321 (Fla. 1st DCA 1982); Britt v. Florida Parole and Probation Commission, 417 So.2d 1079 (Fla. 1st DCA 1982), and Hurst v. Florida Parole and Probation Commission, 418 So.2d 444 (Fla. 1st DCA 1982). At the very minimum, I think the question before us is one that deserves to be certified to the Florida Supreme Court as passing upon a question of great public importance, as was done by the majority in May.