Moore v. Florida Parole and Probation Commission

• Decision Date: 06 February 1974
• Docket Number: No. 44248,44248
• Citation: 289 So.2d 719
• Parties: Rayfield MOORE, Petitioner, v. FLORIDA PAROLE AND PROBATION COMMISSION, Respondent.
• Court: Florida Supreme Court

Page 719

289 So.2d 719

Rayfield MOORE, Petitioner, v. FLORIDA PAROLE AND PROBATION COMMISSION, Respondent.

No. 44248.

Supreme Court of Florida.

Feb. 6, 1974.

Rayfield Moore, in pro. per.

Robert L. Shevin, Atty. Gen., and Enoch J. Whitney, Asst. Atty. Gen., for respondent.

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 absoulte right to parole, there is a right to a proper consideration for parol. 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...