Lowry v. Parole and Probation Com'n
| Decision Date | 13 June 1985 |
| Docket Number | No. 66773,66773 |
| Citation | 473 So.2d 1248,10 Fla. L. Weekly 314 |
| Parties | 10 Fla. L. Weekly 314 Robert W. LOWRY, a/k/a John Corley, Petitioner, v. PAROLE AND PROBATION COMMISSION, State of Florida and Louie L. Wainwright, Secretary, Department of Corrections, State of Florida, Respondents. |
| Court | Florida Supreme Court |
Baya Harrison and Robert Augustus Harper, Jr., Tallahassee, for petitioner.
Enoch J. Whitney, Gen. Counsel, and Kurt E. Ahrendt, Asst. Gen. Counsel, Tallahassee, for respondent Parole and Probation Com'n.
Jim Smith, Atty. Gen., George R. Georgieff and Lawrence A. Kaden, Asst. Attys. Gen., Tallahassee, for respondent Louie L. Wainwright.
In 1977, petitioner was convicted of robbery and sentenced to six months to fifteen years. In 1981, petitioner was convicted of aggravated assault and sentenced to five years. The second sentence imposed is consecutive to the first.
In 1984, pursuant to established commission policies, petitioner and the Florida Parole and Probation Commission entered into a written Mutual Participation Agreement. The terms of that agreement provided for petitioner's release on parole on February 26, 1985. The commission voted petitioner an effective parole release date of February 26, 1985.
On February 13, 1985, the Attorney General of Florida rendered Attorney General's Opinion 85-11 and sent it to commission. That opinion states that a prisoner serving consecutive sentences is not eligible for parole if he is under a sentence he has not yet begun to serve. The commission adopted AGO 85-11 as its own policy and directed Department of Corrections not to release petitioner on his effective parole date. The commission later formally withdrew the Mutual Participation Agreement.
Petitioner had fulfilled his obligations under the agreement and has exhausted his administrative remedies. He seeks mandamus or, in the alternative, habeas corpus, to enforce the terms of the Mutual Participation Agreement. We have jurisdiction pursuant to article V, sections 3(b)(8) and 3(b)(9), Florida constitution.
Prior to the time the commission adopted AGO 85-11 as its own policy, it had been granting paroles to prisoners who had not begun to serve subsequent consecutive sentences. This practice was specifically authorized by AGO 74-11 which reflected the Attorney General's interpretation of section 947.16(1), Florida Statutes (1973). Although section 947.16(1) has not changed in any material way since 1974 (though it has been reworded for clarity), other amendments to chapter 947, a shift in the legal definition of parole, the authorization of minimum mandatory sentences, and "the passage of time" were cited as reasons for the shift in interpretation of the law.
We note that the Department of Legal Affairs is the commission's legal advisor as designated by statute. § 947.11, Fla.Stat. (1983). The effect of AGO 84-11 was to put the commission on notice that, in the opinion of the Attorney General, its established parole procedures for prisoners serving the first of consecutive sentences were in violation of state law. Recognizing the great weight to be accorded an Attorney General's Opinion, Beverly v. Division of Beverage of Department of Business Regulation, 282 So.2d 657 (Fla. 1st DCA 1973), and recognizing that the Attorney General has authority to bring an action to challenge the legality of a parole decision, State ex rel. Boyles v. Florida Parole and Probation Commission, 436 So.2d 207 (Fla. 1st DCA 1983), the commission acted in good faith in rescinding the effective parole release date.
In Florida Parole and Probation Commission v. Paige, 462 So.2d 817 (Fla.1985), this Court held that the commission was not bound to honor a presumptive parole release date when, in the exercise of its discretion, the commission determined that the underlying goals of parole would not be fulfilled if the prisoner were released. This case presents us with a different perspective but a similar result. Here the commission has determined as a matter of policy and law that the underlying goals of consecutive sentencing would not be fulfilled if the prisoner is released. Moreover, the commission itself might be in violation of the law if it honored the agreement. We find there was no abuse of discretion in the commission's rescinding the effective parole release date and the Mutual Participation Agreement.
Having analyzed the propriety of the commission's action, we must now discuss the merits of the Attorney General's Opinion. Petitioner and respondents have all urged cogent arguments supporting their disparate interpretations of the statutes in question. Where reasonable differences arise as to the meaning or application of a statute, the legislative intent must be...
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