Florida Commission on Offender Review v. Johnson

FIRST DISTRICT C OURT OF A PPEAL
STATE OF FLORIDA
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No. 1D2024-2436
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F LORIDA C OMMISSION ON
O FFENDER R EVIEW ,
Appellant,
v.
C YNTHIA M. J OHNSON ,
Appellee.
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On appeal from the Circuit Court for Leon County.
Jonathan Sjostrom, Judge.
February 18, 2026
R AY, J.
The Florida Commission on Offender Review appeals a circuit
court 	order 	granting 	Cynthia 	Johnson’s 	petition 	for 	writ 	of
mandamus and directing the Commission to treat her 1986 life
sentence for armed robbery as parole eligible. Because parole for
non-capital 	felonies 	was 	abolished 	by 	statute 	before 	Johnson
committed her offenses, and because Bedford v. State, 633 So. 2d
13 (Fla. 1994), does not compel a different result, we reverse.
I
In 1986, a Hillsborough County jury convicted Johnson of
first-degree murder and armed robbery arising out of a single
criminal episode. For the murder—a capital felony—the trial court

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imposed a life sentence with a mandatory minimum of twenty-five
years before parole eligibility. For the armed robbery—a first-
degree felony punishable by up to life imprisonment—the court
imposed a concurrent life sentence with a three-year minimum
mandatory. The sentencing transcript reflects that, on the armed-
robbery count, the court considered the recommended guidelines
range and then departed from it, explaining that “the guideline
sentence does not take into consideration” that Johnson also stood
convicted of first-degree murder arising from the same episode.
The Second District Court of Appeal affirmed Johnson’s judgment
and sentence on direct appeal. Johnson v. State, 529 So. 2d 698
(Fla. 2d DCA 1988).
Decades later, Johnson filed a motion in the Hillsborough
County circuit court under Florida Rule of Criminal Procedure
3.800(a) seeking to “correct or clarify” her armed-robbery sentence
to reflect parole eligibility. She acknowledged that neither the
written judgment nor the court’s oral pronouncement addressed
parole 	eligibility 	for 	that 	count. 	But 	she 	asserted 	that 	the
Commission was treating the sentence as parole ineligible and
that this “interpretation” rendered the sentence illegal on its face.
Johnson’s motion advanced two arguments. First, relying on
the 	supreme 	court’s 	opinion 	in 	Bedford, 	she 	contended 	that
because 	the 	armed-robbery 	sentencing 	statute 	does 	not 	itself
restrict parole eligibility, the Commission could not treat her
sentence as parole ineligible. Second, she acknowledged that the
guidelines-era sentencing law generally eliminated parole for non-
capital offenses committed on or after October 1, 1983, but argued
that the guidelines did not govern her armed-robbery sentence
because 	the 	guidelines 	scoresheet 	did 	not 	allow 	first-degree
murder to be scored as the primary offense. In her view, that
scoring 	limitation 	meant 	the 	armed-robbery 	count 	was 	not
sentenced under the guidelines and therefore was not subject to
the parole bar.
The 	circuit 	court 	denied 	the 	motion. 	It 	reasoned 	that
Johnson’s sentence contained no parole restriction and that the
Commission’s parole determination could not render an otherwise
lawful sentence “illegal” for purposes of rule 3.800(a). The court
also explained that, although the armed-robbery statute is silent

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on parole, the sentencing-guidelines law in effect at the time had
eliminated parole for armed robbery—placing Johnson’s sentence
outside the parole system and leaving no legal basis to amend it.
The Commission later granted Johnson parole on her first-
degree-murder sentence, effective February 22, 2023. A Special
Commission Action advised that she had been “paroled to [her]
guideline sentence” and would return before the Commission after
completion 	of 	her 	concurrent 	sentence. 	The 	Commission’s
subsequent Order Granting Parole stated that the grant applied to
the murder conviction and noted that Johnson remained “not
eligible for parole” on her armed-robbery life sentence; it further
provided that the Commission would later determine whether
actual release should occur after completion of the parole-ineligible
sentence.
Johnson then sought mandamus relief in the Leon County
circuit court. She asked the court to direct the Commission to
recognize her armed-robbery life sentence as parole eligible and to
release her onto parole supervision. The circuit court granted the
petition. Viewing Bedford as controlling, the court concluded that
the Commission acted unlawfully by declining to recognize parole
eligibility for the armed-robbery sentence and therefore abused its
discretion. It ordered the Commission to recognize that sentence
as parole eligible and to release Johnson, reasoning that she had
already 	been 	granted 	parole 	on 	the 	murder 	conviction. 	The
Commission now seeks appellate review from this court.*
* 	The 	Commission 	initially 	sought 	“second-tier” 	appellate
review of the circuit court’s final order by petition for writ of
certiorari 	under 	Florida 	Rule 	of 	Appellate 	Procedure
9.030(b)(2)(B). But where, as here, a mandamus petition seeks to
compel agency action based on an asserted statutory duty—rather
than to review a quasi-judicial determination—the circuit court is
not acting in its appellate or review capacity, and its final order is
reviewable by direct appeal. See Fla. Dep’t of Corr. v. Gould, 344
So. 3d 496, 505 (Fla. 1st DCA 2022). We therefore treat the
Commission’s filing as a request for plenary appellate review. See
art. V, § 2(a), Fla. Const. (directing supreme court to adopt a

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II
Mandamus is an extraordinary remedy. It lies only where the
petitioner establishes a clear legal right to the performance of a
ministerial duty and the absence of any other adequate remedy.
City of Miami Beach v. State ex rel. Epicure, Inc., 4 So. 2d 116, 117
(Fla. 1941). In this case, Johnson’s entitlement to mandamus
depends on 	whether 	the 	law 	affords her 	any 	right 	to 	parole
consideration on her armed-robbery sentence. If no such right
exists, the Commission owes no duty to consider parole, and
mandamus cannot lie. See Gould, 344 So. 3d at 505 (explaining
that mandamus turns on whether the petitioner has a legal right
to the exercise of discretion by the agency, rather than on how
discretion should be exercised). Because that threshold inquiry
presents a pure question of law, rather than the resolution of any
factual dispute, our review is de novo. Id.
The answer begins with the sentencing-guidelines statute in
effect when Johnson committed her crimes. That statute requires
the guidelines to be applied to all non-capital felonies committed
on or after October 1, 1983, and it removes offenders sentenced
under that scheme from the parole system. §§ 921.001(4)(a), (8),
Fla. Stat. (1985).
Johnson’s armed-robbery conviction fits within that statutory
framework. Armed robbery is a non-capital felony, punishable by
imprisonment for a term of years not exceeding life. § 812.13(2)(a),
Fla. Stat. (1985). Johnson committed the offense in 1986, after the
sentencing guidelines took effect. To avoid the statute’s parole bar,
Johnson 	advances 	a 	more 	specific 	theory. 	She 	contends 	that
because she was sentenced in the same proceeding for first-degree
murder—a 	capital 	offense 	that 	could 	not 	be 	scored 	on 	the
guidelines scoresheet—the guidelines did not apply to her case at
all. In her view, the trial court’s upward departure on the armed-
robbery count confirms that the sentence was imposed outside the
guidelines and therefore outside the statutory abolition of parole.
“requirement 	that 	no 	cause 	shall 	be 	dismissed 	because 	an
improper remedy has been sought”); Fla. R. App. P. 9.040(c).

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Florida sentencing law resolves that contention differently. A
departure 	does 	not 	take 	a 	sentence 	outside 	the 	guidelines
framework. It presupposes that the guidelines apply and reflects
the sentencing court’s judgment that the recommended range is
inadequate. See Williams v. State, 28 So. 3d 70, 71 (Fla. 1st DCA
2009). The same is true when capital and non-capital offenses are
sentenced together. The capital offense itself falls outside the
guidelines, but the non-capital offenses do not. See Coleman v.
State, 483 So. 2d 539, 540 (Fla. 2d DCA 1986). Any difficulty
scoring the capital offense may explain why the court departed on
the armed-robbery count. See Torres-Arboledo v. State, 524 So. 2d
403, 414 (Fla. 1988) (recognizing that “the fact that a defendant
has been convicted of first-degree murder, a capital felony which
cannot be scored as an additional offense at conviction, may serve
as a clear and convincing reason for departure” from the guidelines
sentence 	on 	a 	non-capital 	offense). 	The 	resulting 	sentence
therefore remains a guidelines sentence, not an illegal or non-
guidelines disposition, and it does not restore parole eligibility
where the Legislature has withdrawn it.
Because 	Johnson’s 	armed-robbery 	sentence 	was 	imposed
while the sentencing guidelines governed non-capital felonies, the
statutory exclusion from parole applies by its own terms.
That brings us to Johnson’s reliance on Bedford. But Bedford
cannot carry the weight Johnson places on it. Bedford was decided
under the supreme court’s all-writs jurisdiction and in a highly
compressed opinion. 633 So. 2d at 13. Bedford had been convicted
of first-degree murder and kidnapping in the late 1980s and
initially 	sentenced 	to 	death 	for 	the 	murder 	and 	to 	life
imprisonment without parole for the kidnapping. Id. at 14. After
the death sentence was vacated and Bedford was resentenced to
life imprisonment with a twenty-five-year minimum mandatory on
the murder count, the Court addressed the kidnapping sentence
and concluded—without explaining why—that “the only illegal
part of the sentence is the prohibition of eligibility for parole.” Id.
The Court added that “[t]he judge could legally impose a life
sentence 	in 	the 	kidnapping 	charge, 	but 	could 	not 	preclude
eligibility for parole for kidnapping,” and it directed that the
parole-prohibition language be stricken. Id.

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That is the full extent of Bedford’s reasoning. The opinion
contains no discussion of the sentencing statutes then in effect, no
analysis of the sentencing guidelines or parole framework, and no
explanation of how the Court reached its conclusion regarding
parole eligibility. With no articulated rule of law, we cannot supply
one.
Stare 	decisis 	binds 	us 	to 	what 	a 	prior 	decision 	actually
decided—not 	to 	what 	might 	have 	been 	assumed 	or 	silently
considered. “Questions which merely lurk in the record, neither
brought to the attention of the court nor ruled upon, are not to be
considered as having been so decided as to constitute precedents.”
Fla. Highway Patrol v. Jackson, 288 So. 3d 1179, 1183 (Fla. 2020)
(quoting Webster v. Fall, 266 U.S. 507, 511 (1925)); see also Waters
v. Churchill, 511 U.S. 661, 678 (1994) (“[C]ases cannot be read as
foreclosing an argument that they never dealt with.”).
Read in that light, Bedford does not establish the rule Johnson
proposes. It does not hold that a non-capital life sentence imposed
alongside a capital life sentence remains parole eligible, and it does
not displace the Legislature’s express decision to abolish parole for
non-capital felonies governed by the sentencing guidelines.
III
The Commission properly declined to extend parole to a non-
capital sentence the Legislature placed outside the parole system.
Any 	inequities 	Johnson 	perceives 	in 	the 	interaction 	between
parole-eligible 	and 	parole-ineligible 	life 	sentences 	reflect
legislative policy choices, not matters the Commission may correct
or 	the 	courts 	may 	remedy 	through 	mandamus. 	We 	therefore
reverse 	the 	order 	granting 	mandamus 	and 	remand 	with
instructions to deny the petition.
REVERSED and R EMANDED.
L EWIS and B ILBREY, JJ., concur.

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Not 	final 	until 	disposition 	of 	any 	timely 	and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Mark Hiers, Deputy General Counsel, Florida Commission on
Offender Review, Tallahassee, for Appellant.
Seth E. Miller and Brandon Scheck of the Innocence Project of
Florida, Inc., Tallahassee, for Appellee.