ROBERT W. LOWRY, A/K/A JOHN CORLEY, PETITIONER,
v.
PAROLE AND PROBATION COMMISSION, STATE OF FLORIDA AND LOUIE L. WAINWRIGHT, SECRETARY, DEPARTMENT OF CORRECTIONS, STATE OF FLORIDA, RESPONDENTS

Fla. | 1985-06-13
No. 66773
BOYD, C.J., and ADKINS, OVERTON, ALDERMAN, McDONALD and SHAW, JJ., concur.
473 So. 2d 1248 Florida Supreme Court (1985) Caution
Cited by 133 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.


Holding

The court held that the Attorney General's Opinion did not represent legislative intent and that the petitioner is eligible for parole consideration before serving consecutive sentences, but withheld the writ to allow the commission to act.


Headnotes

[1] A parole commission acts in good faith when it rescinds a parole release date based on an Attorney General's Opinion that its prior policy violated state law.

[2] A subsequent legislative amendment clarifying statutory interpretation can be considered evidence of prior legislative intent.

Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

Petitioner had a Mutual Participation Agreement for parole release, but the Florida Parole and Probation Commission withdrew it after an Attorney Gene…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
EHRLICH, Justice.

EHRLICH, Justice.

In 1977, petitioner was convicted of robbery and sentenced to six months to fifteen years. In 1981, petitioner was convicted of aggravated assault and sentenced to five years. The second sentence imposed is consecutive to the first.

In 1984, pursuant to established commission policies, petitioner and the Florida Pa role and Probation Commission entered into a written Mutual Participation Agreement. The terms of that agreement provided for petitioner’s release on parole on February 26, 1985. The commission voted petitioner an effective parole release date of February 26, 1985.

On February 13, 1985, the Attorney General of Florida rendered Attorney General’s Opinion 85-11 and sent it to commission. That opinion states that a prisoner serving consecutive sentences is not eligible for parole if he is under a sentence he has not yet begun to serve. The commission adopted AGO 85-11 as its own policy and directed Department of Corrections not to release petitioner on his effective parole date. The commission later formally withdrew the Mutual Participation Agreement.

Petitioner had fulfilled his obligations under the agreement and has exhausted his administrative remedies. He seeks mandamus or, in the alternative, habeas corpus, to enforce the terms of the Mutual Participation Agreement. We have jurisdiction pursuant to article V, sections 3(b)(8) and 3(b)(9), Florida constitution.

Prior to the time the commission adopted AGO 85-11 as its own policy, it had been granting paroles to prisoners who had not begun to serve subsequent consecutive sentences. This practice was specifically authorized by AGO 74-11 which reflected the Attorney General’s interpretation of section 947.16(1), Florida Statutes (1973). Although section 947.16(1) has not changed in any material way since 1974 (though it has been reworded for clarity), other amendments to chapter 947, a shift in the legal definition of parole, the authorization of minimum mandatory sentences, and “the passage of time” were cited as reasons for the shift in interpretation of the law.

We note that the Department of Legal Affairs is the commission’s legal advisor as designated by statute. § 947.11, Fla.Stat. (1983). The effect of AGO 84-11 was to put the commission on notice that, in the opinion of the Attorney General, its established parole procedures for prisoners serving the first of consecutive sentences were in violation of state law. Recognizing the great weight to be accorded an Attorney General’s Opinion, Beverly v. Division of Beverage of Department of Business Regulation, 282 So. 2d 657 (Fla. 1st DCA 1973), and recognizing that the Attorney General has authority to bring an action to challenge the legality of a parole decision, State ex rel. Boyles v. Florida Parole and Probation Commission, 436 So. 2d 207 (Fla. 1st DCA 1983), the commission acted in good faith in rescinding the effective parole release date.

In Florida Parole and Probation Commission v. Paige, 462 So. 2d 817 (Fla.1985), this Court held that the commission was not bound to honor a presumptive parole release date when, in the exercise of its discretion, the commission determined that the underlying goals of parole would not be fulfilled if the prisoner were released. This case presents us with a different perspective but a similar result. Here the commission has determined as a matter of policy and law that the underlying goals of consecutive sentencing would not be fulfilled if the prisoner is released. Moreover, the commission itself might be in violation of the law if it honored the agreement. We find there was no abuse of discretion in the commission’s rescinding the effective parole release date and the Mutual Participation Agreement.

Having analyzed the propriety of the commission’s action, we must now discuss the merits of the Attorney General’s Opinion. Petitioner and respondents have all urged cogent arguments supporting their disparate interpretations of the statutes in question. Where reasonable differences arise as to the meaning or application of a statute, the legislative intent must be the polestar of judicial construction. Tampa-Hillsborough County Expressway Authority v. K.E. Morris Alignment Services, Inc., 444 So. 2d 926 (Fla.1983); Tyson v. Lanier, 156 So. 2d 833 (Fla.1963). Petitioner and respondent filed notices of pending legislation ordered enrolled, bringing to the Court’s attention Committee Substitute for House Bill 1298, ordered enrolled May 30, 1985 and submitted to the Governor and signed into law June 11, 1985, effective upon becoming law. This bill clarified the manner in which presumptive parole release dates are to be calculated for prisoners serving consecutive sentences. It specifically provides that “The guidelines shall require the commission to aggravate or aggregate each consecutive sentence in establishing the presumptive parole release date.” At oral argument, counsel for respondent Wainwright conceded that under the pending legislation, petitioner would be entitled to release.

When, as occurred here, an amendment to a statute is enacted soon after controversies as to the interpretation of the original act arise, a court may consider that amendment as a legislative interpretation of the original law and not as a substantive change thereof. United States ex rel. Guest v. Perkins, 17 F.Supp. 177 (D.D.C.1936); Hambel v. Lowry, 264 Mo. 168, 174 S.W. 405 (1915). This Court has recognized the propriety of considering subsequent legislation in arriving at the proper interpretation of the prior statute. Gay v. Canada Dry Bottling Co., 59 So. 2d 788 (Fla.1952).

In examining Chapter 947 in light of section 775.021(4), Florida Statutes (1983) and section 775.087(2), Florida Statutes (1983), it is unmistakable that the amendments contained in the pending bill are expressions of prior and continuing legislative intent. Thus we hold that while AGO 85-11 is a reasonable interpretation of the law, it does not represent legislative intent.

We therefore hold that petitioner is eligible for consideration for parole before he has begun to serve consecutive sentences. We withhold issuance of the writ of mandamus ordering the commission to grant petitioner a parole interview, however, because we are convinced that the commission’s good faith and desire to follow the law will lead to an expeditious review of petitioner’s case and appropriate action forthwith.

It is so ordered.

BOYD, C.J., and ADKINS, OVERTON, ALDERMAN, McDONALD and SHAW, JJ., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By (65 total)

  • State v. Cotton, 769 So. 2d 345 (Fla. 2000)
    …oposition that, in interpreting a statute, it is proper for the court to consider a subsequent amendment to it, if such amendment was enacted soon after a controversy regarding the statute’s interpretation arose); Lowry v. Parole & Probation Comm’n, 473 So. 2d 1248, 1250 (Fla.1985). SEPARATION OF POWERS Both Woods and Cotton argue that the Act as thus interpreted is unconstitutional. In making this argument, they focus on the Legislature’s decision to include in the Act certain broad exceptions for the prose…
  • State v. Smith, 547 So. 2d 613 (Fla. 1989)
    …405 (1915). This Court has recognized the propriety of considering subsequent legislation in arriving at the proper interpretation of the prior statute. Gay v. Canada Dry Bottling Co., 59 So. 2d 788 (Fla.1952). Lowry v. Parole and Probation Comm’n, 473 So. 2d 1248, 1250 (Fla.1985). This reasoning is particularly apt when the amendment is an unambiguous statement of legislative intent which does not substantively amend the statute. Third, “courts never resort to rules of construction where the legislative inte…
  • State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So. 2d 55 (Fla. 1995)
    …on interpreting section 627.727(10) as prospective totally disregards and nullifies the legislative intent expressed in these provisions. Further, my interpretation is in accord with this Court’s decision in Lowry v. Parole and Probation Commission, 473 So. 2d 1248 (Fla.1985), recognizing that when an amendment to a statute is enacted soon after a controversy regarding the statute’s interpretation, a court may consider that amendment as a legislative interpretation of the law rather than a substantive change.…
    1 / 2

Previewing 3 of 65 citing cases — full citator treatment, depth of discussion, and citing context are member features.

Join FLexlaw to unlock all legal intelligence

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw