PAUL SHIPLETT, APPELLANT,
v.
LOUIE L. WAINWRIGHT, APPELLEE
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A parolee on his second parole challenged the revocation of his parole, claiming he was denied constitutional rights by being denied court-appointed counsel at the parole revocation hearing. The First District Court of Appeal held that the applicable statute is permissive, not mandatory, and that due process does not require appointment of counsel in parole revocation proceedings.
Due process does not require that parolees be provided with appointed counsel at parole revocation proceedings. The statutory language permitting counsel representation is permissive only, not mandatory. Therefore, the parole revocation was valid and the petitioner's gain time was forfeited.
“if he desires, he may be represented by counsel”
The statutory language is permissive, not mandatory regarding counsel representation in parole revocation hearings
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Join FLexlaw to unlock all legal intelligencePaul Shiplett was serving a twenty-year sentence imposed in 1949. While on his second parole, he was charged with parole violations at a hearing befor…
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In an original habeas corpus proceeding initiated in this court, the petitioner alleges that while on his second parole from a twenty-year sentence imposed upon him in 1949, he was charged by the Florida Parole Commission with conduct constituting violation of parole. At a hearing on such charges, petitioner was not provided with court appointed counsel; and he cites such failure as the basis of a deprivation of his constitutional rights. By a subsequent petition filed in this court only a few days later, petitioner reiterates the contention that he was deprived of his constitutional rights by the’ State’s failure to appoint counsel as above related, and that therefore the order revoking petitioner’s parole is void. Premised upon such contention of voidness, petitioner next contends that he is entitled to gain time earned by him as provided by Section 944.27, Florida Statutes, F.S.A., and that the gain time to which he is thus entitled has not been forfeited by the allegedly void parole revocation order.
The two petitions are so interrelated that we treat them here together.
Petitioner has failed to demonstrate or advance any authorities in support of his contention that a parolee is entitled to appointment of counsel as a matter of right to represent him in a proceeding before the Parole Commission where the purpose of such proceeding is to determine whether the parolee is guilty of parole violation. Section 947.23(1), Florida Statutes, F.S.A., relating to hearings in cases of alleged parole violations states in material part, “ * * * if he desires, he may be represented by counsel * * The quoted language concerning representation by counsel is permissive only. The petitioner has not directed this court to any cases holding such language to be mandatory in character, nor has the court’s independent research of the reported cases in this State encountered a ruling construing the permissive language of the statute to be mandatory in effect.
In Thomas v. State, 163 So.2d 328 (Fla. App.2d 1964), our sister court held that hearing to determine whether a person convicted of a crime had violated the terms of *648his probation was not a crucial step in a criminal proceeding so as to entitle an indigent person to appointment of counsel as a matter of right. This view was adhered to in Phillips v. State, 165 So.2d 246 (Fla.App.2d 1964), in which that court squarely held that:
“The failure to furnish court-appointed counsel for an insolvent probationer does not constitute a denial of due process of law nor a denial of the probationer’s constitutional rights so as to render the judgment void and subject to collateral attack * *
While both the Thomas and Phillips cases, supra, concerned hearings to determine revocation of probation, the court is of the view that such proceedings are sufficiently analogous to a parole revocation proceeding so as to warrant application of the same rule. Indeed, the court in Phillips, supra, cited as authority for the result therein reached a federal case, Hyser v. Reed, 115 U.S.App.D.C. 254, 318 F.2d 225 (1963), which did have before it a series of questions arising out of parole revocation proceedings. At page 238, that court ruled:
“We hold due process does not require that indigent parolees be provided with appointed counsel when they appear before the Parole Board in revocation proceedings.”
Accordingly, the proceedings resulting in the revocation of the petitioner’s parole not having been shówn to be deficient in the manner contended, the gain time to which petitioner otherwise would have been entitled has been forfeited by operation of the provisions of Section 947.-23(2), Florida Statutes, F.S.A.
Petitions denied.
CARROLL, DONALD K, Acting C. J., and WIGGINTON, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Gibbs v. Louie L. Wainwright, 302 So. 2d 175 (Fla. 2d DCA 1974)…have held that gain time is forfeited by operation of the provisions of § 947.23(2) F.S. whenever a parole is revoked. Dear v. Mayo, 1943, 153 Fla. 164, 14 So. 2d 267; Easterlin v. Mayo, Fla.1953, 69 So. 2d 181; Shiplett v. Wainwright, Fla.App.1967, 198 So. 2d 647. Federal courts have also held that by violating parole, a prisoner forfeits all credit for good conduct time. Smith v. Blackwell, 5th Cir. 1966, 367 F. 2d 539; Smith v. Attorney General, 5th Cir. 1969, 420 F. 2d 488; Woods v. United States, 5th Cir…
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Johnson v. Louie L. Wainwright, 208 So. 2d 505 (Fla. 1st DCA 1968)…in jail under the warrants. Petitioner has also asserted that he was denied constitutional rights in that a court appointed counsel was not furnished to him in the parole revocation hearing. Such assertion is without merit. Shiplett v. Wainwright, 198 So. 2d 647 (Fla.App. 1st, [*506] 1967); Hutchinson v. Patterson, 267 F. Supp. 433 (D.Colo.1967); Williams v. Craven, 273 F.Supp. 649 (C.D.Calif., 1967). Because of the reason discussed above we hereby remand this case to the trial court and direct that the wr…
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Ruiter v. Louie L. Wainwright, 251 So. 2d 888 (Fla. 1st DCA 1971)…PER CURIAM. Petitioner’s petition for a writ of habeas corpus has been duly considered and the same is hereby denied. § 947.23, F.S., F.S.A.; Shiplett v. Wainwright (Fla.App.1967) 198 So. 2d 647; Johnson v. Wainwright (Fla.App.1968) 208 So. 2d 505; Hyser v. Reed, 115 U.S.App.D.C. 254, 318 F. 2d 225. CARROLL, DONALD K., Acting C. J., and WIGGINTON and RAWLS, JJ., concur.…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hyser v. Reed, 318 F.2d 225 (D.C. Cir. 1963)
- Steil v. Starling, 165 So. 2d 246 (Fla. 1st DCA 1964)
- Thomas v. State, 163 So. 2d 328 (Fla. 3d DCA 1964)