Berry v. State Bd. of Parole
| Decision Date | 11 December 1961 |
| Docket Number | No. 20060,20060 |
| Citation | 367 P.2d 338,148 Colo. 547 |
| Parties | Arthur Eugene BERRY, Jr., Plaintiff in Error, v. STATE BOARD OF PAROLE, Defendant in Error. |
| Court | Colorado Supreme Court |
Arthur E. Berry, Jr., pro se.
Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., J. F. Brauer, Asst. Atty. Gen., for defendant in error.
Plaintiff in error, to whom we will refer as petitioner, filed a petition in the trial court for a writ of certiorari by which he sought to have the district court of Montrose County review the action of the Parole Board in revoking his parole and ordering him to remain in confinement in the Colorado State Penitentiary for at least two years before again being considered for parole. The trial court refused to issue the writ and entered a judgment dismissing the petition. It is that judgment petitioner, appearing here pro se, seeks to have reviewed.
The sole questions to be determined are whether under Rule 106(a)(4), R.C.P.Colo., one filing a complaint and requesting certiorari to some inferior board or tribunal is entitled as a matter of right or as a matter of course to have said writ issue or whether the court, nothing from the petition the deficiency thereof, may deny it forthwith. We hold that the court properly dismissed the petition.
The Colorado statutes make it clear that parole is definitely a matter of grace, not a matter of right. C.R.S. '53, 39-18-1. It is also general law that 'A parole is a mere matter of grace, favor, or privilege, and a prisoner is not entitled thereto as a matter of right.' 67 C.J.S. Pardons § 20, page 604.
New York, having statutes similar to ours involving parole, has on several occasions considered the nature of parole and whether the acts of the parole board are subject to review either by certiorari, habeas corpus or mandamus. The matter being definitely one of grace is not such a function as is reviewable by the court. People ex rel. La Placa v. Heacox, 238 App.Div., 217, 263 N.Y.S. 407; People ex rel. De Maggio v. Bates, Sup., 36 N.Y.S.2d 64; Ditchik v. State Board of Parole, 181 Misc. 346, 46 N.Y.S.2d 564; Application of Cilento, 276 App.Div. 632, 97 N.Y.S.2d 201.
In 14 C.J.S. Certiorari § 18, page 148, note 82, the action of a parole board is specifically listed as an example of the type of administrative decision not reviewable by certiorari.
The petition, therefore, showing on its face that no relief could be granted, it was proper then for the...
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Taylor v. Robinson
...In re Schoengarth, 66 Cal.2d 295, 300, 57 Cal.Rptr. 600, 425 P.2d 200 (characterizing parole as a 'privilege') and Berry v. Parole Board, 148 Colo. 547, 548, 367 P.2d 338, cert. denied, 370 U.S. 927, 82 S.Ct. 1569, 8 L.Ed.2d 507 (holding that 'parole is a mere matter of grace, favor, or pri......
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White v. Rickets, 83SA176
...not the Fort Logan Mental Hospital. After conducting a hearing, the trial court dismissed the petition. Relying on Berry v. State Board, 148 Colo. 547, 367 P.2d 338 (1961), it concluded that it had no authority to review determinations of the Parole Board. The trial court also stated as an ......
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U-Tote-M of Colorado, Inc. v. City of Greenwood Village, U-TOTE-M
...A citation to show cause need not thereafter issue as such orders presuppose a judicial discretional authority. Berry v. State Board of Parole, 148 Colo. 547, 367 P.2d 338 (1961). Second, if, as the rule expressly states, an affidavit supports the complaint, such affidavit may provide the b......
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Question Concerning State Judicial Review of Parole Denial Certified by U.S. Court of Appeals for Tenth Circuit, In re
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