Mabrey v. Florida Parole Com'n

• Decision Date: 07 November 2003
• Docket Number: No. 2D03-51.,2D03-51.
• Citation: 858 So.2d 1176
• Parties: Raymond MABREY, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
• Court: Florida District Court of Appeals

858 So.2d 1176

Raymond MABREY, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.

No. 2D03-51.

District Court of Appeal of Florida, Second District.

November 7, 2003.

Raymond Mabrey, pro se.

Mark J. Hiers, Assistant General Counsel, Tallahassee, for Respondent.

WALLACE, Judge.

Raymond Mabrey, a state prisoner, petitions this court for a writ of certiorari to review a circuit court order that denied his petition for writ of habeas corpus. Mabrey filed his habeas corpus petition in the circuit court to review the Florida Parole Commission's revocation of his conditional release. Because we conclude that the circuit court's order departs from the essential requirements of the law, we grant the petition, quash the circuit court's order, and remand the case to the circuit court for further proceedings consistent with this opinion.

The Facts

On February 11, 1993, Mabrey was sentenced to a term of twenty-two years in prison. On January 1, 2001, after he had accumulated 155 months' worth of basic and incentive gain time, Mabrey was released from custody in accordance with the provisions of sections 947.1405 and 947.141, Florida Statutes (2000), known as the "Conditional Release Program Act."

At the time of the events relevant to this case, the terms of Mabrey's conditional release included the following conditions:

7. YOU SHALL OBEY ALL LAWS, ORDINANCES AND STATUTORY CONDITIONS OF CONDITIONAL RELEASE.

....

16. YOU SHALL MAKE RESTITUTION TOWARD THE TOTAL AMOUNT OF $2,506.00 (NOT LESS THAN $40.00 PER MONTH) TO THE VICTIM IN CASE NUMBER 91-09561 WITH METHOD OF PAYMENT THROUGH YOUR CONDITIONAL RELEASE SUPERVISOR. ALL PAYMENTS MADE BY THE OFFENDER SHALL BE APPLIED TO RESTITUTION IN THE ABOVE NAMED CASE(S) UNTIL PAID IN FULL. PAYMENTS SHALL THEN BE APPLIED TO ANY OTHER FINANCIAL OBLIGATIONS REQUIRED BY THIS ORDER.

Condition 16 concerning the payment of restitution was not imposed at the time of Mabrey's release but was added on May 21, 2001.

Evidence presented at Mabrey's revocation hearing established the pertinent facts. The event that precipitated the revocation of Mabrey's conditional release was a telephone call made by Mabrey's girlfriend (to whom we shall refer as "S.W.") to the St. Petersburg Police Department on the afternoon of September 23, 2001. Mabrey and S.W. had moved into an apartment in St. Petersburg earlier that month. Although the lease on the apartment was in S.W.'s name, Mabrey paid all the bills. S.W. testified that on the day in question, she wanted to leave the apartment in St. Petersburg and go home to Bradenton, but Mabrey would not let her take his car. S.W. decided to call the police and make a false report that Mabrey had hit her. Her motive was to get Mabrey out of the apartment so that she could take his vehicle and drive to Bradenton.

Officer David Skinner of the St. Petersburg Police Department was dispatched to respond to S.W.'s report of domestic violence. When Skinner arrived, S.W. was waiting outside the apartment. She told Skinner that Mabrey had slapped her face and that she wanted him out of the apartment. Skinner entered the apartment and found Mabrey sitting on the bed. Mabrey made no comment to Skinner about S.W.'s claim that Mabrey had hit her. Skinner placed Mabrey under arrest. Skinner reported at the hearing that Mabrey was polite. Mabrey asked Skinner to call his probation officer so that she would know his whereabouts.

When S.W. realized that Mabrey was under arrest and going to jail, she told Skinner that she did not want Mabrey to go to jail, just out of the apartment. S.W. refused to fill out any victim witness sheets and declined to be photographed. Skinner did not observe any evidence of injury to S.W. S.W. testified that she refused to sign anything because she knew she was lying. After Mabrey was arrested, S.W. took his vehicle and went to Bradenton.

Pursuant to a report filed by Mabrey's probation officer, Crystal Milton, the Parole Commission issued a warrant for Mabrey's arrest. The warrant charged Mabrey with violating condition 7 of the conditions of his release by slapping S.W. in the face. The warrant further charged Mabrey with violating condition 16 of the conditions of his release "in that he is $120.00 in arrears towards his monetary obligation in restitution as of September 25, 2001."

The Violation Hearing

Mabrey entered a plea of not guilty to both charges. A parole examiner conducted a hearing on the warrant alleging that Mabrey had violated the conditions of his conditional release. Four witnesses, including Mabrey, testified at the hearing. S.W. appeared and denied that Mabrey had hit her as she had earlier reported. S.W. also testified concerning the details of her living arrangements with Mabrey, the events that led to her telephone call to the police, and her motivation for making the false report that Mabrey had slapped her. S.W. also offered some testimony concerning Mabrey's earnings and their joint living expenses, which Mabrey paid. Officer Skinner testified concerning the events that had occurred when he responded to S.W.'s report that Mabrey had slapped her.

Mabrey offered testimony concerning the details of his employment, his earnings, and his various expenses and obligations. Mabrey stated that he had not had the additional funds available to pay the restitution obligation that was imposed in May 2001 but expressed the intention of "eventually making up the differences." Mabrey did not admit striking S.W. but expressed regret about having the argument with her that led to her telephone call. Mabrey said that S.W. was pregnant with his child.

Mabrey's probation officer, Milton, testified that S.W. had called to tell her that Mabrey had not hit her; S.W. just wanted Mabrey out of the apartment. S.W. had continued to call Milton periodically to request that Mabrey be released from jail. Milton had no personal knowledge concerning S.W.'s allegation of domestic violence. However, Milton did report that the state attorney's office had declined to file an information on the charge.

Milton told the parole examiner that she had charged Mabrey with failure to pay restitution because he received the new law violation. Although Milton had instructed Mabrey in May 2001 concerning the new requirement to pay restitution in the amount of $40 per month, she had not made any determination at that time of his ability to pay restitution. At the time of the issuance of the warrant, Mabrey was delinquent in his restitution obligation in the amount of $120, having failed to pay for the months of June, July, and August. Milton's information concerning Mabrey's employment income was incomplete. She did not know the extent of his expenses and obligations but was aware that he had an automobile. Milton testified that because she was concerned about the stability of Mabrey's employment and residence, she "did not push the restitution issue with him."

Milton testified that although Mabrey was initially unemployed following his release, he eventually obtained two jobs in order "to make ends meet." Mabrey had been placed on electronic monitoring and had no problems with the system. Mabrey had submitted all of his monthly written reports in a timely manner. Milton was concerned about Mabrey's relationship with S.W. but recommended that he be reinstated to his conditional release status.

The Parole Examiner's Findings and Recommendation

Because there was no evidence presented to prove the allegation, the parole examiner found Mabrey not guilty of the new law violation. On the second charge of violating condition 16 by failing to pay restitution, the parole examiner found Mabrey not guilty because no evidence was submitted that he had the ability to pay. The parole examiner recommended that Mabrey's supervision be reinstated.

The Parole Commission's Order

On January 30, 2002, the Parole Commission issued its order finding that Mabrey had violated the terms and conditions of his conditional release. The evidence that the Parole Commission said it relied upon in support of its finding was:

Condition 16: Finding of guilt based upon the testimony of Correctional Probation Officer Crystal Milton that she had instructed subject on May 20, 2001, that he was to pay $40.00 per month toward restitution. Also, that subject had reported an income of $1,100.00 for the month of July 2001, and $1,120.00 for the month of June 2001.

Based upon this finding, the Parole Commission revoked Mabrey's conditional release, and he was returned to prison.

Proceedings in the Circuit Court

In July 2002, Mabrey filed a petition for writ of habeas corpus in the circuit court. Mabrey's petition alleged, in pertinent part:

[A]fter the formal revocation hearing, the hearing officer found as to the allegation of missed restitution payments that the Petitioner was not guilty. She based this determination on all the evidence admitted at the hearing and reasoned that no evidence was submitted to prove he had the ability to pay. She further recommended CRS [conditional release supervision] be reinstated.

To Petitioner's misfortune, the Commission was dissuaded by the hearing officer's recommendation and decided to revoke the CRS based on its' [sic] own independent review of the evidence. This act of the commission violates basic notions of due process and state law.

(Record references omitted.) Mabrey argued further that the parole examiner's finding that he did not willfully and substantially violate the terms and conditions of his conditional release was supported by competent, substantial evidence. Mabrey concluded that the Parole Commission was wrong to "second guess" the parole examiner. Mabrey requested that he be returned to conditional release supervision.

In its order denying the petition for writ of habeas corpus, the circuit court did not directly address Mabrey's argument on this point but said:

The Court further finds that the evidence adduced at this

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