JAMES E. DEES, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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The Florida Supreme Court answered a certified question regarding the constitutionality of Florida's parole revocation statute under the due process requirements established in Morrissey v. Brewer. The Court held that Section 947.23, Florida Statutes, is constitutional and provides adequate due process protections, though it clarified that written notice of alleged violations and disclosure of evidence are required as of the Morrissey decision date.
The Florida Supreme Court held that Section 947.23, Florida Statutes, is constitutional and provides adequate due process protections for parole revocation proceedings. However, the Court clarified that as of the Morrissey decision date (June 29, 1972), 'due notice' must include written notice of alleged violations and disclosure of the evidence against the parolee, as amplified by Morrissey.
[1] Due process requires that a hearing be accorded to a person before parole can be revoked.
[2] Parole revocation proceedings must provide an opportunity to be heard in person and present witnesses and documentary evidence.
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Join FLexlaw to unlock all legal intelligence“since June 29, 1972, the date on which Morrissey, supra, was rendered, "due notice" — as amplified and enlarged by that decision — requires written notice to the parolee of the alleged violations, including a disclosure of the evidence against him.”
Establishes the Court's holding clarifying that Morrissey's due process standards require written notice and disclosure of evidence in parole revocation proceedings
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Join FLexlaw to unlock all legal intelligenceJames E. Dees sought habeas corpus relief challenging his parole revocation proceedings under Florida law. At his habeas corpus hearing, the trial cou…
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BOYD, Justice.
We have for consideration a question from the Seventh Judicial Circuit in and for Volusia County relating to constitutionality of Section 947.23, Florida Statutes, as it is incorporated in Sections 949.-10, 949.11 and 949.12, Florida Statutes, in light of the holding of the United States Supreme Court in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). At petitioner’s habeas corpus hearing, the trial court found that the question presented herein was determinative of this cause and was without controlling precedent in this state, whereupon it withheld its decision certifying the issue to this Court. We have jurisdiction to answer the certified question pursuant to Rule 4.6, Florida Appellate Rules, 32 F.S. A., 1962 Revision. Jaworski v. City of Opa-Locka, 149 So. 2d 33 (Fla.1963); Boyer v. City of Orlando, 232 So. 2d 169 (Fla.1970).
The question presented by the trial in its Certificate of Great Public Interest is as follows:
“Is Section 947.23 F.S.A. unconstitutional in that the parole revocation proceedings provided for therein does not provide for the minimum due process requirements of the fifth and fourteenth amendments to the Constitution of the United States and as is more particularly set forth in the United States Supreme Court decision in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484, 1972?”
Initially, we observe that long before the decisions of Morrissey, supra, and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), this Court recognized that due process required that a hearing must be accorded to a person charged before parole could be revoked. Brill v. State, 159 Fla. 682, 32 So. 2d 607 (1947). Additionally, we point out that in Morris-sey, supra, the Supreme Court recognized that in Section 947.23(1), Florida Statutes, Florida had provided for a hearing in parole revocation cases (see footnote 15, Morrissey, 33 L.Ed.2d 484 at 498).
Comparing the standard of due process specified in Morrissey, supra, with that established for parole revocations, in our state statute, we find: (1) in Morrissey there is required an “opportunity to be heard in person and to present witnesses and documentary evidence” as well as the “right to confront and cross-examine adverse witnesses” before “a ‘neutral . ’ hearing body, such as a . parole board”; § 947.23, Florida Statutes, specifically provides that a person charged with parole violation shall appear personally before the Parole Commission at a hearing at which both the parolee and the state may introduce such evidence as is necessary; implicit therein is the provision that after the evidence is introduced the parolee may confront and cross-examine the state’s witnesses; (2) in Morrissey, supra, a “written statement by the factfinders” is required, while in § 947.23, Florida Statutes, provision is made for the Commission to “make findings on such charge of parole violation”; and (3) in Morrissey, supra, it is required that the parolee receive “written notice of the claimed violations” and a “disclosure . . .of the evidence against him”; although § 947.23, Florida Statutes, as implemented by Rule 23-2.09 of the Parole and Probation Commission, Florida Administrative Code, does not specify “written” notice and “disclosure of evidence,” we find implicit in the remainder of the statute that “due notice” be given Ware v. State, 219 So. 2d 442 (Fla.App.3d 1969). More specifically, in light of Morrissey, supra, we hold that, since June 29, 1972, the date on which Morrissey, supra, was rendered, “due notice”' — as amplified and enlarged by that decision — requires written notice to the parolee of the alleged violations, including a disclosure of the evidence against him.
Accordingly, the certified question is answered negatively, and we hold Section 947.23, Florida Statutes, to be constitutional.
It is so ordered.
ADKINS, C. J., and McCAIN, DEKLE and OVERTON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Clark v. Suncoast Hosp., Inc., 338 So. 2d 1117 (Fla. 2d DCA 1976)…stion certified would be determinative of the entire cause inasmuch as all claims of the Clark children as plaintiffs are alleged in Count III. We agree that our answer will be dispositive of their case. See Fla.App. Rule 4.6(a). Cf., Dees v. State, 295 So. 2d 296 (Fla.1974); Gordon v. Norris, 90 So. 2d 914 (Fla.1956). Admittedly, the question is without controlling precedent in this state. Plaintiffs make a forceful argument that as children of a disabled father, they will not only suffer a loss of the fund…
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Gibbs v. Louie L. Wainwright, 302 So. 2d 175 (Fla. 2d DCA 1974)…s, we are of the opinion that Gibbs was afforded the minimum due process requirements of Morrissey. Addison v. Florida Parole Board, Fla.App.1st, 1973, 281 So. 2d 906; Smith v. Wainwright, Fla.App.1st, 1973, 285 So. 2d 668; Dees v. State, Fla. 1974, 295 So. 2d 296. Gibbs next contends that he was subjected to double jeopardy in that through parole revocation all of his gain time, statutory time and parole time has been taken from him. At the time Gibbs’ parole was revoked § 947.21 F.S. provided that a viola…
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Means v. Louie L. Wainwright, 299 So. 2d 577 (Fla. 1974)…to the extent that they establish minimal due process requirements in parole and probation revocation proceedings, and we have so acknowledged in the cases of Bernhardt v. State, 288 So. 2d 490 (Fla. 1974), and most recently in Dees v. State, Fla., 295 So. 2d 296, opinion filed May 22, 1974. In the instant case, although we are not confronted with a revocation of parole, but rather with the rescission of an unexe-cuted grant of parole, we cannot distinguish such proceedings in principle insofar as the demand…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Morrissey v. Brewer, 408 U.S. 471 (U.S. 1972)
- Gagnon v. Scarpelli, 411 U.S. 778 (U.S. 1973)
- Brill v. State, 159 Fla. 682 (Fla. 1947)
- Gonzalez v. State, 159 Fla. 681 (Fla. 1947)
- Sigmund T. Jaworski v. The City OF Opa-Locka, 149 So. 2d 33 (Fla. 1963)
- Boyer v. City OF Orlando, 232 So. 2d 169 (Fla. 1970)
- Ware v. State, 219 So. 2d 442 (Fla. 3d DCA 1969)