
    Felix LOBO, Petitioner, v. FLORIDA PAROLE AND PROBATION COMMISSION, et al., Respondent.
    No. 82-1397.
    District Court of Appeal of Florida, Fourth District.
    June 22, 1983.
    
      Felix Lobo, pro se petitioner.
    John C. Courtney, Asst. Gen. Counsel, Tallahassee, for respondent — Florida Parole and Probation Com’n.
   EN BANC.

This is an original action for a writ of habeas corpus directing the Parole and Probation Commission to reduce petitioner’s Presumptive Parole Release Date. Lobo was convicted of conspiracy to traffic in cocaine. The Parole and Probation Commission calculated his Presumptive Parole Release Date (PPRD). Lobo sought timely administrative review which was denied. Lobo then filed an original petition in this court requesting review on grounds that the Commission erroneously computed his PPRD on the basis that he was convicted of a second degree felony, that the Commission failed to consider the disparity of sentence between him and his co-defendants, and that the Commission erroneously applied the parole guidelines currently in effect rather than those in effect as of the time of commission of the offense.

The respondent asserts that the petitioner should have styled this cause as one of mandamus, not habeas corpus, because he requests an order requiring the Commission to act. Hardy v. Greadington, 405 So.2d 768 (Fla. 5th DCA 1981). We agree. However, under the appellate rules such a mistake is not fatal and we are obligated to treat the petition as one for mandamus. Hardy; Taylor v. Wainwright, 418 So.2d 1095 (Fla. 5th DCA 1982); Fla.R.App.P. 9.040(c).

We do not believe petitioner’s first two points have merit. Petitioner was convicted of conspiracy to traffic in cocaine. Trafficking in cocaine is a first degree felony. § 893.135(l)(b), Fla.Stat. (1981). Conspiracy to commit a first degree felony is a second degree felony. § 777.04(4)(b), Fla. Stat. (1981). Thus, the Commission correctly calculated the offense severity as one of second degree felony. Petitioner also claims that the Commission should have considered the sentences imposed upon his co-defendants as a mitigating factor in the determination of his PPRD. The Commission, upon review of the calculation of the PPRD, considered this factor and ruled that it was not strong enough. Such a decision is a discretional^ one, and this court cannot substitute its judgment for that of the agency unless the decision is outside of the range of discretion given to the agency, is inconsistent with other agency policy, or is in violation of a constitutional or statutory provision. § 120.68(12), Fla.Stat. (1981).

Petitioner also claims that the application to him of more stringent parole guidelines adopted after the commission of his crime violates the ex post facto clause of the Florida and United States Constitutions. This issue has been addressed on numerous occasions by the First District, and on each occasion the court has rejected the ex post facto argument. See Rolle v. Florida Parole and Probation Commission, 426 So.2d 1082 (Fla. 1st DCA 1983); May v. Florida Parole and Probation Commission, 424 So.2d 122 (Fla. 1st DCA 1982); Hurst v. Florida Parole and Probation Commission, 418 So.2d 444 (Fla. 1st DCA 1982); Britt v. Florida Parole and Probation Commission, 417 So.2d 1079 (Fla. 1st DCA 1982); Overfield v. Florida Parole and Probation Commission, 418 So.2d 321 (Fla. 1st DCA 1982); and Lopez v. Florida Parole and Probation Commission, 410 So.2d 1354 (Fla. 1st DCA 1982). We agree with the rationale expressed in Overfield, supra:

Without extended discussion of whether amendments to the matrix rule constitute procedural changes not subject to ex post facto considerations, or are substantive changes, we cannot agree that such amendments necessarily increase punishment and are, therefore, illegal. The matrix time range does not automatically determine time served, and the Commission in its discretion may 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-making, the time to be served.

Furthermore, we approve the reasoning set forth in May, supra:

[W]e add that a presumptive parole release date is only presumptive. It is discretionary prologue to the Commission’s final exercise of its discretion in setting an inmate’s effective parole release date. Section 947.18, Florida Statutes, which was in effect at all times pertinent to this case, gives the Commission ultimate discretion to decide when to parole an inmate even though his presumptive parole release date may indicate an earlier date. See Gobie v. Florida Parole and Probation Commission, 416 So.2d 838 (Fla. 1st DCA 1982). The establishment of a presumptive parole release date by the Commission is not analogous to an inmate’s accumulation of statutory gain time — the subject matter of the United States Supreme Court’s opinion in Weaver.

Pursuant to Article V, Section 3(b)(4), of the Constitution of Florida, we certify that the following question passed upon by us in this cause is one of great public importance:

Does the application of different parole guidelines adopted after the commission of the crime violate the ex post facto clause of the Florida and United States Constitutions?

Our opinion is issued en banc pursuant to Florida Rule of Appellate Procedure 9.331, because there are presently several other similar and undecided cases pending before various panels of this court. These eases all present the same legal issue and en banc consideration herein will effect a uniform result in each matter.

The petition for writ of habeas corpus is thus denied.

LETTS, C.J.,- and BERANEK, HERSEY, GLICKSTEIN, DELL and WALDEN, JJ., concur.

ANSTEAD, J., with whom DOWNEY and HURLEY, JJ., join, dissenting in part with opinion.

DOWNEY, J., with whom HURLEY, J., joins, dissenting in part with opinion.

ANSTEAD, Judge,

with whom DOW-NEY and HURLEY, JJ., join, dissenting in part.

I agree with the majority's disposition of the first two issues. However, petitioner’s claim that the application to him of more stringent parole guidelines adopted after the commission of the crime violates the ex post facto clause of the Florida and U.S. Constitutions presents a more difficult issue. The Commission contends that this claim is foreclosed by Lopez v. Florida Parole and Probation Commission, 410 So.2d 1354 (Fla. 1st DCA 1982). Lopez dealt with a prisoner who committed a crime and was convicted of this crime while the Commission had no objective criteria for determining parole. Lopez later objected to the use of objective guidelines developed after his sentencing. The court denied the ex post facto claim on the basis that “Lopez’s only expectation was that parole would be at the discretion of the Commission.” Id. at 1355. Lobo’s position is significantly different from that of Lopez. At the time of Lobo’s commission of the crime (February 7 and 18,1981), objective guidelines were in effect which sharply limited the discretion of the Commission in determining Lobo’s parole status. His expectation of parole would have been based on these guidelines rather than the broad discretion previously vested in the Commission or the current guidelines which also disfavor him. Thus, the Lopez rationale does not apply.

In Lee v. State, 294 So.2d 305 (Fla.1974), the Florida Supreme Court ruled that a law extending the minimum sentence could not be retroactively applied without violating ex post facto prohibitions. Subsequently, in Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981), the Supreme Court held that a new law that changed the criteria for earning gain time for good conduct could not be applied to a person who had committed a crime while an old and more favorable law was in effect. The Supreme Court held that the new law violated ex post facto prohibitions because it “applied to events occurring before its enactment, and it disadvantaged the offender affected by it.” Id. 450 U.S. at 29, 101 S.Ct. at 964. In short, because the Florida gain time law was applied to a person convicted before the law was passed and because the law reduced that person’s opportunities for gain time, it was declared unconstitutional. The Supreme Court rejected Florida’s contention that because gain time was a matter of grace and not a vested right, ex post facto prohibitions should not apply.

Under Weaver, it would appear that parole is also not immune from ex post facto scrutiny. In Weaver the Supreme Court quoted with approval an opinion of a three judge panel of the District Court in Greenfield v. Scafati, 277 F.Supp. 644 (Mass.1967), aff’d, 390 U.S. 713, 88 S.Ct. 1409, 20 L.Ed.2d 250 (1968), which found “no distinction between depriving a prisoner of the right to earn good conduct deductions and the right to qualify for, and hence earn, parole. Each ... materially ‘alters the situation of the accused to his disadvantage.’ ” 450 U.S. at 34, 101 S.Ct. at 967. Parole considerations have also been relied upon as a basis for permitting a defendant to withdraw a guilty plea. See Norris v. State, 343 So.2d 964 (Fla. 1st DCA 1977); Richmond v. State, 375 So.2d 1132 (Fla. 1st DCA 1979); Green v. State, 406 So.2d 1148 (Fla. 1st DCA 1981). The objective parole guidelines appear to serve the same function as the criteria to be considered under the Florida gain time law. The legislature has specifically mandated that the guidelines be predicated upon objective criteria so that disparities in parole release times for similarly situated prisoners are eliminated. Section 947.002(1) provides:

The present system lacks objective criteria for paroling and, thus, is subject to allegations of arbitrary and capricious release and, therefore, potential abuses. It is the intent of this act to establish an objective means for determining and establishing parole dates for inmates.

In effect, although they are not as precise and are still subject to the exercise of some measure of discretion by the Commission, the guidelines determine within set bounds how much of his sentence a prisoner must actually serve, just as the gain time law does. The fact that the guidelines are administrative regulations rather than statutes would appear to be irrelevant.

That there is a substantial disparity between the new and the old guidelines is pointed out in Lopez:

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.

In 1981 the matrix time for second degree murder was increased by regulation to 80-100 months. Fla.Adm.Code Rule 23-21.09 (1981). Hence, a prisoner whose release time is computed under the original guidelines would face a maximum matrix time of 33 months while a prisoner rated under the current guidelines would face a minimum of 80 months, a substantial disparity, indeed.

In short, Lobo alleges, and the Commission does not deny, that the new guidelines were used to determine his PPRD, notwithstanding that the new guidelines disadvantage him and that he committed the crime while the old guidelines were in effect. Thus, in my view, under Weaver, Lobo does state a valid ex post facto objection and he is entitled to the benefit of the guidelines that were in effect when he committed the crime.

DOWNEY, Judge,

with whom HURLEY, J., joins, dissenting in part.

I agree with the dissent authored by Judge Anstead.

I would add that the string of First District Court of Appeal cases relied upon by the majority stem from the seminal case of Lopez v. Florida Parole and Probation Commission, 410 So.2d 1354 (Fla. 1st DCA 1982), cert. den.-U.S.-, 103 S.Ct. 207, 74 L.Ed.2d 166, which Judge Anstead’s dissent shows is easily distinguishable. In addition, it is not entirely accurate to suggest that, unlike statutory gain time, presumptive parole release dates are merely discretionary with the Parole Commission. For example, the Commission is required to establish a presumptive parole release date for all prisoners. Section 947.172, Florida Statutes (1981). After establishing a presumptive parole release date, the Commission may review the official record and conduct additional interviews with the inmate. However, the presumptive parole release date is not to be changed except for reasons of institutional conduct or based upon new information not available at the time the presumptive parole release date is initially fixed. Sec. 947.26, Florida Statutes (1981). If the inmate requests review of his presumptive parole release date pursuant to Sec. 947.173, Florida Statutes (1981), the Commission can modify his presumptive parole release date, but only by shortening it; it can not be lengthened. “It is the intent of the legislature that, once set, presumptive parole release dates be modified only for good cause in exceptional circumstances.” Sec. 947.173, Florida Statutes (1981). It thus appears that the determination of a presumptive parole release date, while not fixed, is quite structured, which is exactly why the legislature mandated the establishment of objective parole guidelines.

For those reasons and the reasons set forth in Judge Shivers’ dissenting opinion in May v. Florida Parole and Probation Commission, 424 So.2d 122, 124 (Fla. 1st DCA 1982), I would grant the petition for writ of habeas corpus. 
      
      . In addition, I cannot agree with the Commission’s and the Lopez court’s reliance on and analysis of Dobbert v. Florida, 432 U.S. 282, 292, 97 S.Ct. 2290, 2297, 53 L.Ed.2d 344 (1977). Dobbert dealt with three separate ex post facto challenges to the Florida death penalty statute. The first challenge was that the statute changed the function of judge and jury. In response to this challenge, the Supreme Court stated that procedural changes did not violate ex post facto prohibitions. The second challenge is irrelevant here. The third challenge dealt with changes in parole release dates. The Supreme Court did not rule on this challenge because the petitioner had no standing to raise the issue. Thus, the language concerning procedural changes was not applied to changes in parole computations. Thus, in my view, neither the rationale of Lopez nor the rationale of Dobbert foreclose an ex post facto challenge to the use of new parole guidelines in calculating Lobo’s PPRD.
     