RAYFIELD MOORE, PETITIONER,
v.
FLORIDA PAROLE AND PROBATION COMMISSION, RESPONDENT
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The Florida Supreme Court held that while parole is discretionary, a parole commission must exercise that discretion properly and cannot consider convictions obtained in violation of the Sixth Amendment right to counsel. The Court rejected the argument that mandamus was an improper remedy and clarified that petitioner was entitled to have his parole eligibility determined without consideration of constitutionally defective convictions.
Mandamus is an appropriate remedy to compel a parole commission to reconsider parole eligibility without relying on constitutionally defective convictions, even though parole itself is discretionary. While mandamus cannot compel the granting of parole, it can compel the commission to exercise its discretion in accordance with constitutional requirements and to reconsider eligibility without considering convictions that do not meet Gideon v. Wainwright standards.
[1] A writ of mandamus will not lie to compel the granting of parole, as parole decisions are discretionary.
[2] A parole commission may not deny parole based on prior convictions that are constitutionally invalid due to lack of counsel.
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Join FLexlaw to unlock all legal intelligence“Although perhaps inartfully worded, the intent of our alternative writ was to require respondent to show cause why it should not be compelled to reconsider the eligibility of petitioner for parole without consideration of the aforementioned prior convictions, not to compel the granting of parole.”
Clarifies that mandamus may compel proper reconsideration without consideration of illegal convictions, even though it cannot compel the grant of parole itself.
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Join FLexlaw to unlock all legal intelligenceRayfield Moore petitioned for a writ of habeas corpus (treated as mandamus) challenging the Florida Parole and Probation Commission's denial of his pa…
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DEKLE, Justice.
By petition for writ of habeas corpus, Petitioner Moore seeks review in this Court of respondent’s denial of parole to him alleging that Respondent Commission improperly considered petitioner’s prior convictions in determining not to grant him parole, and that such prior convictions are invalid in that they were rendered while petitioner was without assistance of counsel. Treating the petition as one for mandamus, pursuant to Art. V, § 2(a), Fla.Const., F.S.A., we issued our alternative writ. Respondent has now filed a motion to quash and to deny the petition, asserting that the remedy sought is improper in that the granting or denial of parole is a discretionary matter, hence not within the bounds of application of a writ of mandamus. We deny the motion.
Respondent is correct in its contention that a writ of mandamus will not lie to compel the granting of parole, such being a matter within respondent’s discretionary powers under F.S. §§ 947.13 and 947.16(2), F.S.A. Marsh v. Garwood, 65 So. 2d 15 (Fla.1953). This Court cannot command that an officer perform an act unless it is his duty to perform it. State v. Chancey, 129 Fla. 194 176 So. 78 (1937). However, this contention misses the mark. Although perhaps inartfully worded, the intent of our alternative writ was to require respondent to show cause why it should not be compelled to reconsider the eligibility of petitioner for parole without consideration of the aforementioned prior convictions, not to compel the granting of parole. While there is no absolute right to parole, there is a right to a proper consideration for parole. And this should be free from the consequences of a conviction not meeting the standards of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733 (1963); Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967). The Parole Commission is required, as any other body, to comply with constitutional requirements; it cannot deny parole upon illegal grounds or upon improper considerations. It is answerable in mandamus if it does.
Petitioner contends that a denial of parole based on his “invalid” convictions in fact causes him to suffer anew from the prior violations of his Sixth Amendment rights, citing the somewhat analogous cases of Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), and Mitchell v. Wainwright, 308 F.Supp. 436 (D.C.Fla.1969). Petitioner is entitled to have the question of his eligibility for parole determined upon evidence which passes constitutional muster. In short, the alternative writ does not direct itself toward the issue of whether parole should be granted to the petitioner, but to the issue of whether certain matters were and should have been considered by respondent in its denial of parole to the petitioner. The writ itself, if it be granted after respondent has responded to the alternative writ, would not command the respondent’s discretion, but rather would compel the respondent to exercise its discretion as to the granting or denial of parole without consideration of the aforementioned convictions.
Accordingly, the motion is denied and respondent is directed to file its response to the alternative writ within 20 days of the filing of this opinion.
It is so ordered.
CARLTON, C. J., and ERVIN, BOYD and McCAIN, JJ., concur. ROBERTS and ADKINS, JJ., dissent.
Supplemental Opinion
Response to our alternative writ of mandamus has now been filed; it appears therefrom that in determining whether or not to grant parole to petitioner, the respondent did not in fact consider petitioner’s prior convictions not meeting the standards set forth in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), as petitioner contended that respondent had done. Rather, in evaluating petitioner for parole, the respondent considered certain independent admissions of petitioner to representatives of respondent and of the Florida Division of Corrections as to prior criminal conduct. Petitioner’s conviction for which he is serving his present sentence was considered but there he was represented by counsel and plead guilty.
The writ is accordingly
Discharged.
ADKINS, C. J., and ROBERTS, ERVIN, BOYD, McCAIN and DEKLE, JJ., concur.
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Citator
Cited By (59 total)
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Sheley v. Fla. Parole Comm'n, 703 So. 2d 1202 (Fla. 1st DCA 1997)…sion, 441 So. 2d 663 (Fla. 1st DCA 1983). Mandamus has become the accepted remedy for the review of a Parole Commission order in the absence of a statutory right to appeal. The supreme court held in Moore v. Florida Parole and Probation Commission, 289 So. 2d 719 (Fla.1974), that mandamus is available to compel proper consideration of a claim for parole. With the advent of the Administrative Procedure Act, an inmate could seek review by appeal. When the legislature eliminated this right, the supreme court ex…
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Daniels v. Fla. Parole & Prob. Comm'n, 401 So. 2d 1351 (Fla. 1st DCA 1981)…v. State, 316 So. 2d 537 (Fla.1975), and to review by extraordinary remedy, Turner v. Wainwright, 379 So. 2d 148 (Fla. 1st DCA 1980), affd., sub nom. Wainwright v. Turner, 389 So. 2d 1181 (Fla.1980); Moore v. Florida Parole 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.…
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Waldrup v. Dugger, 562 So. 2d 687 (Fla. 1990)…ime recomputed as required herein. This right and the corresponding duty of DOC are clear and certain to this Court under the precedents discussed above. Mandamus will lie when such a right and duty exist. Moore v. Florida Parole & Probation Comm’n, 289 So. 2d 719 (Fla.), cert. denied, 417 U.S. 935, 94 S.Ct. 2649, 41 L.Ed.2d 239 (1974). Accordingly, we treat the present petition as a request for writ of mandamus, and grant the writ. Finally, we turn to the question of how DOC shall compute basic gain-time fo…
Previewing 3 of 59 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gideon v. Wainwright, 372 U.S. 335 (U.S. 1963)
- Goldberg v. Kelly, 397 U.S. 254 (U.S. 1970)
- Burgett v. Texas, 389 U.S. 109 (U.S. 1967)
- Marsh v. Garwood, 65 So. 2d 15 (Fla. 1953)
- State v. Chancey, 129 Fla. 194 (Fla. 1937)