CHARLES N. GIBBS, PETITIONER,
v.
LOUIE L. WAINWRIGHT, DIRECTOR, DIVISION OF CORRECTIONS, STATE OF FLORIDA, RESPONDENT
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Gibbs challenged his parole revocation on due process and double jeopardy grounds. The Florida District Court of Appeal held that Gibbs received adequate procedural due process under Morrissey v. Brewer and that the forfeiture of gain time and parole credit upon revocation does not constitute double jeopardy under Florida law.
The court held that Gibbs was afforded the minimum due process requirements of Morrissey v. Brewer. The court also held that under Florida law, a parolee whose parole is revoked forfeits gain time and parole credit, and this forfeiture does not constitute double jeopardy.
[1] A parole revocation hearing must afford the minimum due process requirements of Morrissey v. …
[2] A parolee who admits to violating parole conditions at a hearing, after being notified and waiving counsel, has been afforded due process.
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“Under these circumstances, we are of the opinion that Gibbs was afforded the minimum due process requirements of Morrissey.”
The court's holding that the parole revocation hearing satisfied constitutional due process protections.
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Join FLexlaw to unlock all legal intelligenceOn June 3, 1973, Gibbs was arrested for driving under the influence while on parole. On June 6, 1973, the Florida Probation and Parole Commission issu…
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HOBSON, Acting Chief Judge.
Petitioner Gibbs filed his petition for writ of habeas corpus in this court, we issued our rule nisi, and respondent timely, filed his return. Gibbs contends that he was denied the due process requirements of Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L.Ed.2d 484, in that he was not afforded a formal hearing of parole violation and was not notified that his parole, had been revoked.
On June 3, 1973, while on parole, Gibbs was arrested for a misdemeanor — driving while under the influence of alcohol — in violation of § 316.028 F.S. On June 6, 1973, the Florida Probation and Parole Commission issued a warrant for retaking based on probable cause that Gibbs had violated one or more conditions of his parole agreement. Gibbs was notified of a parole violation hearing on June 15, 1973, agreed to proceed to hearing before one Commissioner, and waived legal representation.
At this hearing Gibbs admitted to violating condition ten of his parole agreement by failing to report to his parole supervisor and condition sixteen relating to consumption of intoxicating beverages. The record reflects that the Commission revoked Gibbs’ parole on June 28, 1973, effective June 15, 1973.
Under these circumstances, 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 violation of parole shall subject the parolee to “serve out the term for which he was sentenced,” and no part of the time he may have been on parole shall in such event, in any manner diminish the time of such sentence.1 The courts of this state have consistently held that a parolee whose parole had been revoked was not entitled to credit for time when he was on parole. Mayo v. Lukers, Fla.1951, 53 So. 2d 916; Deese v. Cochran, Fla. 1962, 139 So. 2d 429; Porter v. State, Fla.App.1st, 1968, 212 So. 2d 828. See also Starnes v. Connett, 5th Cir. 1972, 464 F. 2d 524, which dealt with an analogous statute.
The courts of Florida 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. 1971, 449 F. 2d 740.
The writ is hereby discharged.
BOARDMAN and GRIMES, JJ., concur. . Sec. 947.21 F.S. was amended by Ch. 74-112, § 22, effective July 1, 1974, to provide that the commission in its discretion may credit the parole violator with any portion of the time he has satisfactorily served on parole.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Duncan v. Moore, 754 So. 2d 708 (Fla. 2000)…te double jeopardy. Further, returning a Conditional Release violator to prison to continue serving his or her sentence without credit for the prior awarded gain time does not constitute a violation of double jeopardy.1 See also Gibbs v. Wainwright, 302 So. 2d 175 (Fla. 2d DCA 1974)(concerning forfeiture of gain time upon parole revocation). EX POST FACTO Petitioner Duncan also asserts that subjecting him to Conditional Release constitutes an ex post facto violation. See art. 1 § 10, Fla. Const.; U.S. Const…
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Lawson v. State, 751 So. 2d 623 (Fla. 4th DCA 1999)…on violation of probation after a split sentence, double jeopardy is not violated because it is the defendant’s intervening conduct which triggers the new sentence. We see no reason not to apply similar reasoning here. See also Gibbs v. Wainwright, 302 So. 2d 175 (Fla. 2d DCA 1974)(defendant’s double jeopardy challenge to forfeiture of gain time on parole revocation rejected without discussion); Lashley v. Florida, 413 F.Supp. 850, 852 (M.D.Fla.1976)(holding “there is no double jeopardy to an inmate when, up…
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Glenn v. State, 827 So. 2d 292 (Fla. 5th DCA 2002)…he spent out of custody on parole. Section 944.28(1), Florida Statutes (1981) allows the DOC to forfeit all gain time earned in the event that parole was granted and subsequently revoked as it twice was in Glenn’s case. See also Gibbs v. Wainwright, 302 So. 2d 175, 177 (Fla. 2d DCA 1974) (recognizing that Florida courts have consistently held that gain time is forfeited whenever parole is revoked). We find no merit in Glenn’s other claims. AFFIRMED. SHARP, W., and PALMER, JJ., concur.…
Authorities Cited (14 total)
- Morrissey v. Brewer, 408 U.S. 471 (U.S. 1972)
- Smith v. Olin G. Blackwell, 367 F.2d 539 (5th Cir. 1966)
- Normandy Beach Club, Inc. v. Milton Props., Inc., 153 Fla. 216 (Fla. 1943)
- Johnson v. Engel, 153 Fla. 164 (Fla. 1943)
- Deese v. Cochran, 139 So. 2d 429 (Fla. 1962)
- Dees v. State, 295 So. 2d 296 (Fla. 1974)
- Shiplett v. Louie L. Wainwright, 198 So. 2d 647 (Fla. 1st DCA 1967)
- DeLage Larry Smith v. Attorney General OF the United States, 420 F.2d 488 (5th Cir. 1969)
- Addison v. Fla. Parole Bd., 281 So. 2d 906 (Fla. 1st DCA 1973)
- Easterlin v. Mayo, 69 So. 2d 181 (Fla. 1953)