Armour v. FLORIDA PAROLE COM'N

• Decision Date: 14 August 2007
• Docket Number: No. 1D06-5427.,1D06-5427.
• Citation: 963 So.2d 305
• Parties: Donald Hugh ARMOUR, Jr., Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
• Court: Florida District Court of Appeals

963 So.2d 305

Donald Hugh ARMOUR, Jr., Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.

No. 1D06-5427.

District Court of Appeal of Florida, First District.

August 14, 2007.

Donald Hugh Armour, Jr., pro se, Petitioner.

Kim Fluharty, General Counsel, and Bradley R. Bischoff, Assistant General Counsel, Florida Parole Commission, Tallahassee, for Respondent.

PER CURIAM.

Donald Hugh Armour petitions this court for writ of certiorari¹ challenging the circuit court's order construing his petition for writ of habeas corpus as a petition for non-habeas relief and affirming the Florida Parole Commission's suspension of his presumptive parole release date. We grant the petition.

The Commission issued an order granting parole to Armour in March 2003, setting his effective parole release date EPRD for April 29, 2003. The following month, the Commission postponed the release because it had received "new information," namely that the State of Michigan had not completed its investigation of Armour's proposed parole release plan. See § 947.1745(5)(a), Fla. Stat. (2005). Armour waived his right to a hearing and agreed to an extension of his EPRD to a date 30 days from the Commission's receipt of Michigan's completed investigation. Before receiving anything from the State of Michigan, however, the Commission issued an order rescinding Armour's parole and suspending his presumptive parole release date PPRD, finding that his "release would be contrary to the provisions of the Florida Statutes."

In June 2003, Michigan informed the Commission that the conditions in Armour's proposed plan were satisfactory and recommended that he be allowed parole release in Michigan. Thereafter, a parole examiner conducted an EPRD interview and recommended that Armour be released on parole, and included in the report that the Department of Corrections staff recommended that he be released on parole. The Commission nevertheless issued a report stating that it had decided not to authorize his EPRD and that his PPRD of September 18, 2003, would remain suspended.²

Armour sought review from the Commission, claiming that it had "no new good cause or exceptional circumstance, no new information or unfavorable institutional conduct, whereby to justify its action." The Commission denied the request for review, stating that there is no authority for appealing the suspension of a PPRD. Armour filed a petition for writ of habeas corpus in Leon County Circuit Court, seeking to compel the Commission to release him on parole consistent with the previously set EPRD and the parole plan approved by the State of Michigan. The circuit court determined that Armour was not properly seeking habeas relief, "because the complaint does not challenge the lawful authority of the Department of Corrections' detention of the plaintiff," but instead sought certiorari or mandamus relief, and directed him to pay a filing fee.

The lower court departed from the essential requirements of law by construing Armour's petition for writ of habeas corpus as seeking non-habeas relief. See Thomas v. State, 751 So.2d 764 (Fla. 1st DCA 2000) (granting certiorari because the circuit court applied the incorrect law by treating petitioner's 3.800(c) motion as seeking relief under rule 3.800(a), and did not reach the merits of the motion). Armour was not challenging the suspension of his PPRD but was challenging the rescission of his EPRD. This court has stated that "a Commission order suspending an inmate's PPRD and thereby refusing to set an effective parole release date is appropriately reviewed by mandamus," but that "the proper remedy to obtain review of a Commission's decision after it has set an EPRD is by habeas corpus for release." Williams v. Fla. Parole Comm'n, 625 So.2d 926, 934 (Fla. 1st DCA 1993). "Judicial review is . . . available...