Mattingly v. Florida Parole & Probation Commission

417 So. 2d 1163, 1982 Fla. App. LEXIS 28623

• Court: District Court of Appeal of Florida
• Decided: August 13, 1982
• Docket: No. AI-353
• Status: Published

Opinion

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.