Charron v. State Bd. of Pardons & Paroles, 40973

• Decision Date: 06 September 1984
• Docket Number: No. 40973,40973
• Citation: 253 Ga. 274,319 S.E.2d 453
• Court: Georgia Supreme Court
• Parties: CHARRON v. STATE BOARD OF PARDONS & PAROLES et al.

Page 453

319 S.E.2d 453

253 Ga. 274

CHARRON v. STATE BOARD OF PARDONS & PAROLES et al.

No. 40973.

Supreme Court of Georgia.

Sept. 6, 1984.

Thomas J. Charron, Dist. Atty., Marietta, pro se.

Michael J. Bowers, Atty. Gen., Michael E. Hobbs, George M. Weaver, Asst. Attys.Gen., J. Stephen Schuster, Marietta, Steven A. Westby, Atlanta, J. Alfred Johnson, Charles David Caithaml, Marietta, for State Bd. of Pardons and Paroles et al.

MARSHALL, Presiding Justice.

This complaint was filed by plaintiff Thomas J. Charron, who is the District Attorney of the Cobb Judicial Circuit. Named as defendants are the State Board of Pardons and Paroles, as well as certain named parolees who were convicted in the plaintiff's judicial circuit. In the complaint, the plaintiff alleges that in 1981 the board, without giving 10 days' prior written notice to the plaintiff, granted paroles to the named parolees before they had served one-third of their sentences. The plaintiff complains that this violates OCGA § 42-9-46, and he requests the issuance of a declaratory judgment and injunctive relief. Ruling that § 42-9-46, as well as § 42-9-45(b), unconstitutionally infringe on the powers of the board under the Georgia Constitution, the superior court denied the plaintiff's requests for relief. He appeals. For reasons which follow, we reverse.

This opinion can be most easily divided into: (1) the Georgia law on the subject matter of this suit, (2) the superior court's rulings, and (3) our disposition of this case on appeal. It is necessary to determine the constitutionality of the applicable statutory provisions under the 1976 Georgia Constitution because it was in effect when the complained-of paroles were granted. It is also necessary to determine the constitutionality of these statutory provisions under the 1983 Constitution, because that now determines the plaintiff's entitlement to his requests for relief.

Georgia Law.

(a) Under Art. IV, Sec. II, Par. I of the Georgia Constitution of 1976, the board was vested with the "power to grant reprieves, pardons and paroles, to commute penalties, remove disabilities imposed by law, and ... remit any part of a sentence for any offense against the State, after conviction except in cases of treason or impeachment, and except in cases in which the Governor refuses to suspend a sentence of death ..." This provision of the 1976 Constitution further required the board to communicate to each Session of the General Assembly "in full detail each case of pardon, parole, commutation, removal of disabilities or remission of sentence granted ..." Finally, this paragraph of the 1976 Constitution provided, "The General Assembly may enact laws in and of, but not inconsistent with, this Paragraph."

(b) Subparagraph (a) of Art. IV, Sec. II, Par. II of the Georgia Constitution of 1983 provides, "Except as otherwise provided in this Paragraph, the State Board of Pardons and Paroles shall be vested with the power of executive clemency, including the powers to grant reprieves, pardons, and paroles; to commute penalties; to remove disabilities imposed by law; and to remit any part of a sentence for any offense against the state after conviction."

Subparagraph (b) deals with two situations: when a sentence of death is commuted to life imprisonment, and when a person is convicted of armed robbery. When a sentence of death is commuted to life imprisonment, subparagraph (b) provides that the board shall not have the authority to grant a pardon to the convicted person until such person has served at least 25 years in the penitentiary. And, when a person is convicted of armed robbery, subparagraph (b) further provides that the board shall not have the authority to consider such person for pardon or parole until such person has served at least five years in the penitentiary.

Subparagraph (c) provides, "Notwithstanding the provisions of subparagraph (b) of this Paragraph, the General Assembly, by law, may prohibit the Board from granting and may prescribe the terms and conditions for the Board's granting a pardon or parole to: (1) Any person incarcerated for a second or subsequent time for any offense for which such person could have been sentenced to life imprisonment; and (2) Any person who has received consecutive life sentences as the result of offenses occurring during the same series of acts."

(c) Art. IV, Sec. VII, Par. II of the 1983 Constitution provides, "The powers and duties of members of constitutional boards and commissions provided for in this Article, except the Board of Pardons and Paroles, shall be as provided by law." (Emphasis supplied.)

(d) And, the separation-of-powers doctrine is enshrined in both the 1976 and 1983 Georgia Constitutions. "The legislative, judicial, and executive powers shall forever remain separate and distinct ..." Art. I, Sec. II, Par. III, Georgia Constitution of 1983; Art. I, Sec. II, Par. IV, Georgia Constitution of 1976.

(e) OCGA § 42-9-45(b) sets forth the length of sentence which must be served before initial consideration for parole takes place. In this regard, § 42-9-45(b) provides, "An inmate serving a misdemeanor sentence or misdemeanor sentences shall only be eligible for consideration for parole after the expiration of six months of his sentence...