Stewart v. Florida Parole & Probation Commission

District Court of Appeal of Florida

Stewart v. Florida Parole & Probation Commission

419 So. 2d 1157, 1982 Fla. App. LEXIS 21330

CourtDistrict Court of Appeal of Florida

DecidedSeptember 29, 1982

DocketNo. AH-344

StatusPublished

This text of 419 So. 2d 1157 (Stewart v. Florida Parole & Probation Commission) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Stewart v. Florida Parole & Probation Commission, 419 So. 2d 1157, 1982 Fla. App. LEXIS 21330 (Fla. Ct. App. 1982).

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Opinion

WIGGINTON, Judge.

Stewart, a prisoner at Avon Park Correctional Institution, appeals from a commission decision that established his presumptive parole release date. Stewart argues that because the commission is prohibited from applying as aggravating circumstances any factors that are used in arriving at the matrix time range, Section 947.165(1), Florida Statutes (1979), the commission erred by scoring his matrix time range with “robbery” as the offense characteristic and then applying the following aggravating factor: “Large amount of cash stolen by threat of weapon was never recovered.”

The record reflects that Stewart pled guilty in connection with a robbery in which he personally took a large amount of money from a bank teller. Because this indicates that returning the money was, at one point, within Stewart’s knowledge and ability, the commission did not err in considering his failure to make restitution as an aggravating factor. See Bizzigotti v. Florida Parole and Probation Commission, 410 So.2d 1360 (Fla. 1st DCA 1982); White v. Florida Parole and Probation Commission, 394 So.2d 472 (Fla. 4th DCA 1981); Fla.Admin.Code Rule 23-19,03(l)(c)(l). We note that failure to make restitution is not an element of robbery. § 812.13(1), Fla.Stat. (1979). Cf. Bell v. State, 394 So.2d 979 (Fla.1981).

Accordingly, the commission’s action is affirmed.

MILLS and ERVIN, JJ., concur.

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WIGGINTON, Judge.

Stewart, a prisoner at Avon Park Correctional Institution, appeals from a commission decision that established his presumptive parole release date. Stewart argues that because the commission is prohibited from applying as aggravating circumstances any factors that are used in arriving at the matrix time range, Section 947.165(1), Florida Statutes (1979), the commission erred by scoring his matrix time range with “robbery” as the offense characteristic and then applying the following aggravating factor: “Large amount of cash stolen by threat of weapon was never recovered.”

The record reflects that Stewart pled guilty in connection with a robbery in which he personally took a large amount of money from a bank teller. Because this indicates that returning the money was, at one point, within Stewart’s knowledge and ability, the commission did not err in considering his failure to make restitution as an aggravating factor. See Bizzigotti v. Florida Parole and Probation Commission, 410 So.2d 1360 (Fla. 1st DCA 1982); White v. Florida Parole and Probation Commission, 394 So.2d 472 (Fla. 4th DCA 1981); Fla.Admin.Code Rule 23-19,03(l)(c)(l). We note that failure to make restitution is not an element of robbery. § 812.13(1), Fla.Stat. (1979). Cf. Bell v. State, 394 So.2d 979 (Fla.1981).

Accordingly, the commission’s action is affirmed.

MILLS and ERVIN, JJ., concur.

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419 So. 2d 1157, 1982 Fla. App. LEXIS 21330, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stewart-v-florida-parole-probation-commission-fladistctapp-1982.

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