JAMES SMITH, JR., PETITIONER,
v.
MAURICE G. CROCKETT, CHAIRMAN, THE FLORIDA PAROLE & PROBATION COMMISSION, AND WILLIAM F. ROUSE, SUPERINTENDENT OF THE DADE CORRECTIONAL INSTITUTION, RESPONDENTS
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Smith, an inmate, sought habeas corpus relief challenging his parole postponement by the Florida Parole & Probation Commission. The Commission postponed Smith's January 1980 parole release by twelve months based on the aggravating factor that his crime involved a firearm. The court upheld the Commission's decision, holding that the firearm use aggravating factor could properly be applied because it was not included within the statutory definition of the crime of conviction.
The court held that the Commission properly applied the firearm aggravating factor because the use of a firearm is not included within the statutory definition of manslaughter or second-degree murder. Therefore, the factor could legitimately be used to postpone parole release.
[1] A parole commission may depart from recommended parole guidelines to postpone release if the offense involved the use of a firearm, even if the underlying charge is mansl…
[2] A parole commission cannot use an aggravating factor to depart from parole guidelines if that factor is already included within the definition of the crime for which the…
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Join FLexlaw to unlock all legal intelligence“If the aggravating . factor is included within the definition of the crime (e. g., armed robbery by definition involves the use of a firearm or dangerous weapon), . such aggravating . . . factors] shall not be applicable.”
The parole rule establishing that aggravating factors that are inherent to a crime's definition cannot be used for postponement.
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Join FLexlaw to unlock all legal intelligenceSmith was convicted of manslaughter (a lesser charge than second-degree murder), for which he was shot the victim with a pistol. Under the parole guid…
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DANIEL S. PEARSON, Judge.
The petitioner, presently incarcerated at the Dade Correctional Institution, within this District, seeks a writ of habeas corpus, alleging that he is, and has been since January 8, 1980, illegally detained by Respondent Rouse, the Superintendent of the Correctional Institution, as a result of the action of Crockett, as Chairman of the Florida Parole & Probation Commission.1 Specifically, Smith says that under the Rules of the Department of Parole & Probation Commission, Florida Administrative Code Rule 23-19.01 et seq. (commonly known as the parole guidelines), he was entitled to be released on parole on January 8, 1980, but that the Commission departed from the recommended matrix and postponed his release date for twelve months. The Commission’s stated justification for this departure was the aggravating circumstance that the offense for which petitioner stood convicted was “committed with a firearm.”
The guidelines do provide that an aggravating factor which the Commission can use to postpone parole release is that the offense involved the use of a firearm. Fla. Admin.Code Rule 23-19.03(l)(a)l. However, petitioner claims that a decision exceeding the guidelines is prohibited under Florida Administrative Code Rule 23-19.03, which states in pertinent part: “If the aggravating . factor is included within the definition of the crime (e. g., armed robbery by definition involves the use of a firearm or dangerous weapon), . such aggravating . . . factors] shall not be applicable.”
The second-degree murder information upon which Smith (who was convicted of the lesser offense of manslaughter) stood trial, charged that he killed the victim by shooting him with a pistol. Smith contends that this charge brings him within the ambit of Rule 23-19.03, supra. We disagree. The use of a firearm or dangerous weapon, that is, the aggravating factor, is not in- eluded within the definition of second-degree murder or manslaughter. Therefore, this factor can be legitimately used to enlarge the time before the petitioner will be released on parole.
Accordingly, the petition for writ of ha-beas corpus is denied.
. We observe that the custodian of the petitioner and therefore the proper respondent is Louie L. Wainwright, Secretary, Department of Corrections, State of Florida. Because of the fundamental nature of a petition for writ of habeas corpus, we will treat it as though the respondent had been correctly named. See Woods v. Cochran, 131 So. 2d 5 (Fla.1961).
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Daniels v. Fla. Parole & Prob. Comm'n, 401 So. 2d 1351 (Fla. 1st DCA 1981)…role and Probation Commission, 289 So. 2d 719 (Fla.1974); James v. Florida Parole and Probation Commission, 395 So. 2d 197 (Fla. 1st DCA 1981); Battis v. Florida Parole and Probation Commission, 386 So. 2d 295 (Fla. 1st DCA 1980); Smith v. Crockett, 383 So. 2d 1166 (Fla. 3d DCA 1980); Baker v. Florida Parole and Probation Commission, 384 So. 2d 746 (Fla. 1st DCA 1980). II. Mandamus Prior to the decision of the Florida Supreme Court in Moore v. Florida Parole and Probation Comn., supra, the extraordinary writ…
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Baker v. State, 425 So. 2d 36 (Fla. 5th DCA 1982)…riticize Pinder in view of the fact that the single transaction rule has been abolished in Florida. . Similarly, the use of a firearm has been held to not be included within the definition of second degree murder or manslaughter. Smith v. Crockett, 383 So. 2d 1166 (Fla. 3d DCA 1980). . This illustrates a set of alternative elements. . The fact that an accused in a particular case chose to actually commit the murder in a manner that also violated a distinctly different statutory prohibition is constitutional…
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Taylor v. Louie L. Wainwright, 418 So. 2d 1095 (Fla. 5th DCA 1982)…s a proper method of challenging the validity of a presumptive parole release date where, as in the instant ease, the prisoner claims his entitlement to immediate release. Jenrette v. Wainwright, 410 So. 2d 575 (Fla. 3d DCA 1982); Smith v. Crockett, 383 So. 2d 1166 (Fla. 3d DCA 1980); cf. Lyden v. Wainwright, 307 So. 2d 258 (Fla. 2d DCA 1974). In Jenrette, which was a habeas corpus proceeding, the issue essentially was the same as in the instant case, and only Wainwright was named as respondent. The latter mo…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hezzie Woods v. Cochran, 131 So. 2d 5 (Fla. 1961)