Taylor v. Wainwright, 82-866

• Decision Date: 06 August 1982
• Docket Number: No. 82-866,82-866
• Citation: 418 So.2d 1095
• Court: Florida District Court of Appeals
• Parties: James Lamont TAYLOR, Petitioner, v. Louie L. WAINWRIGHT, etc., et al., Respondent.

Page 1095

418 So.2d 1095

James Lamont TAYLOR, Petitioner, v. Louie L. WAINWRIGHT, etc., et al., Respondent.

No. 82-866.

District Court of Appeal of Florida,

Fifth District.

Aug. 6, 1982.

Rehearing Denied Sept. 2, 1982.

James Lamont Taylor, pro se.

Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Daytona Beach, for appellee.

COBB, Judge.

The petitioner, James Lamont Taylor, has filed an original petition for habeas corpus asserting that he is entitled to immediate release from the custody of respondent, Louie L. Wainwright, Secretary of the Department of Corrections of Florida. He attributes his illegal detention to an erroneous computation by the Florida Parole and Probation Commission of his presumptive release date.

According to the sworn petition, Taylor was charged with two counts of sexual battery, both counts under section 794.011(5), Florida Statutes, and one count of kidnapping under section 787.01. He pleaded no contendere to one count of sexual battery and was sentenced to prison for a term of fifteen years on June 5, 1979.

On April 22, 1980, the petitioner interviewed with a parole examiner, a Mr. Paul Rigsby, for the purpose of determining a presumptive parole release date. ¹ Rigsby determined the matrix time range by locating the offense severity factor and the salient factor on the matrix. Petitioner's salient factor was "one," and Rigsby set the offense of conviction at a severity rating of "Greatest Most Serious--II." ² According to the guidelines in effect in April, 1980, given the above severity rating and salient factor, the matrix time range was 83 to 107 months. Mr. Rigsby arrived at this matrix time range and added 13 months for an aggravating circumstance in petitioner's instance. ³

On May 21, 1980, the Parole and Probation Commission agreed with Mr. Rigsby's recommendation and set petitioner's presumptive parole release date as May 3, 1988. Later Mr. Rigsby requested petitioner's presumptive parole release date be reduced by 24 months, but the Commission held that the date would remain at May 3, 1988. The Commission denied petitioner's request for review of his presumptive parole release date as untimely.

In his petition, Taylor asserts that Rigsby erroneously placed the offense of conviction in the "Greatest Most Serious II" category. Petitioner was sentenced to serve fifteen years for the offense of sexual battery, which in the information was sexual battery charged under section 794.011(5), sexual battery with force not likely to cause personal injury. The parole guidelines in effect in April, 1980, provided an offense severity rating for this offense as "Very High." The matrix time range for this rating, coupled with petitioner's salient factor of "one," was 18 to 24 months. This range, plus the 13 months for the aggravating circumstance, establishes a total time of 38 months. The petitioner has already served over 49 months, well past the correct presumptive parole release date.

The respondents herein, Louie L. Wainwright as Secretary of the Department of Corrections and Jim Smith as Attorney General, in response to the petition have filed an unsworn "Motion to Dismiss or, Alternatively, to Substitute Proper Party" contending:

(1) That Wainwright and Smith, as non-voting members of the Florida Parole and Probation Commission, are not proper parties of this action;

(2) That petitioner has failed to exhaust his administrative remedies;

(3) That petitioner "has not shown by affidavit or evidence the probable cause to believe that he is detained without lawful authority necessary for issuance of the writ sought herein"; and

(4) That the proper party-respondent in this case would be the Florida Parole and Probation Commission rather than Smith and Wainwright.

We first address items (1) and (4) raised by respondents relating to the proper party or parties to this cause. The Third District Court of Appeal has recognized habeas corpus as a proper method of challenging the validity of a presumptive parole release date where, as in the instant case, the prisoner claims his entitlement to immediate release. Jenrette v. Wainwright, 410 So.2d 575 (Fla. 3d DCA 1982); Smith v. Crockett, 383 So.2d 1166 (Fla. 3d DCA 1980); cf. Lyden v. Wainwright, 307 So.2d 258 (Fla. 2d DCA 1974).

In Jenrette, which was a habeas corpus proceeding, the issue essentially was the same as in the instant case, and only Wainwright was named as respondent. The latter moved to dismiss on the ground that Jenrette had failed to exhaust his administrative remedies. This was denied. An oral argument was held before the appellate court on the petition and response, and the court found that the actual allegations in Jenrette's affidavit supporting his petition had to be taken as true because Wainwright had failed to controvert them. The court noted that the Attorney General, who was representing Wainwright in that case, as in the instant case, has ready access to any records which would have refuted Jenrette's affidavit, which dealt with the method by which the Florida Parole and Probation Commission had computed his presumptive parole release date (just as does Taylor's sworn petition in the instant case). See, e.g., State v. Coney, 294 So.2d 82 (Fla.1974). The Jenrette court, in this regard, stated that it was dilatory for the respondent Wainwright to merely assert that Jenrette's affidavit was insufficient. It is clear that the court considered that the Secretary of the Department of Corrections, represented by the Attorney General, had full access to any Commission records and Commission witnesses necessary to controvert, and adequately defend against, Jenrette's petition for writ of habeas corpus. Moreover, it is fundamental that the person to be named as a respondent in a habeas corpus action is the person holding custody and who is in a position to produce the petitioner physically. See 28 Fla. Jur. 2d, Habeas Corpus, § 96 and cites cited thereunder.

In Hardy v. Greadington, 405 So.2d 768 (Fla. 5th DCA 1981) this court reviewed on appeal a trial court's denial of a petition for habeas corpus which contended that the Parole and Probation Commission had improperly computed the petitioner's presumptive parole release date, and affirmed on the merits. In that case we noted a similar challenge in Smith v. Crockett, supra, and stated:

[I]t would appear that the more appropriate remedy is mandamus, when as here, it is asserted that the public official is not following the law or established guidelines.

Hardy also observed that, whereas the granting or withholding of parole is discretionary, the Parole Commission cannot deny parole upon illegal grounds or improper consideration, else it is answerable in mandamus, citing the Florida Supreme Court case of Moore v. Florida Parole and Probation Commission, 289 So.2d 719, 720 (Fla. 1974) for this proposition. Nevertheless, the Hardy opinion reached the merits of the actions of the Commission and determined the appeal adversely to the argument of the appellant; it did not dismiss the appeal nor did it affirm the trial court on the rationale that the petitioner had utilized the incorrect procedural device below.

In Moore the petitioner filed an original petition for writ of habeas corpus with the Florida Supreme Court seeking review of the Parole Commission's denial of his parole, alleging it was based upon improper consideration. The court treated the petition as one for mandamus. The respondent Commission moved to quash the petition on the ground that the discretionary aspect of parole placed it beyond the bounds of mandamus review, and that motion was denied. The court then held that while there was no absolute right to parole, there is a right to a proper consideration for parole free from the taint of illegal or improper grounds. "Petitioner is entitled to have the question of his eligibility for parole determined upon evidence which passes constitutional muster." Moo...