Williams v. New Mexico Dept. of Corrections

• Decision Date: 22 December 1972
• Docket Number: No. 9468,9468
• Parties: George WILLIAMS, Petitioner-Appellant, v. NEW MEXICO DEPARTMENT OF CORRECTIONS et al., Respondents-Appellees.
• Court: New Mexico Supreme Court

Page 631

504 P.2d 631

84 N.M. 421

George WILLIAMS, Petitioner-Appellant, v. NEW MEXICO DEPARTMENT OF CORRECTIONS et al Respondents-Appellees.

No. 9468.

Supreme Court of New Mexico.

Dec. 22, 1972.

[84 NM 421] Peter B. Shoenfeld, Santa Fe, for petitioner-appellant.

David L. Norvell, Atty. Gen., Thomas A. Donnelly, Sp. Asst. Atty. Gen., Santa Fe, for respondents-appellees.

OPINION

MONTOYA, Justice.

This is an appeal from an order of the District Court of Santa Fe County quashing an alternative writ of mandamus filed by petitioner, an inmate of the New Mexico State Penitentiary. We are here called upon to determine if petitioner was, as a matter of law, entitled to a parole revocation hearing when his parole was revoked subsequent to being granted a parole, but prior to being released from the prison facility.

The record reveals that petitioner was granted a parole 'pending an approved parole plan,' on April 15, 1971. However, before any parole plan could be approved, the Parole Board met and considered a disciplinary report filed against the petitioner. Having considered the disciplinary report, the Board voted to cancel petitioner's 'pending' parole.

In the trial court, petitioner argued that § 41--17--28(C), N.M.S.A., 1953 Comp., requires that there be a parole revocation hearing prior to any order revoking an inmate's parole. That statute provides:

'C. Upon arrest and detention, the board shall cause the prisoner to be promptly brought before it for a parole revocation hearing on the parole violation charged, under rules and regulations the board may adopt. If violation is established, the board may continue or revoke the parole or enter any other order as it sees fit.'

Having considered the aforementioned facts, the trial judge entered his finding to the effect that:

'The Court finds that Petitioner's release on parole was not finalized and so Petitioner was not entitled to a hearing when his conditional release on parole was cancelled.'

Since the issues presented to this court spring from an order quashing the alternative writ of mandamus:

'* * * (W)e must determine if mandamus is available under the facts. It is a general rule long recognized by us that mandamus will generally not lie to control the discretion or judgment of a public officer. Ross v. State Racing Commission, 64 N.M. 478, 330 P.2d 701 (1958); * * *.

'* * * (T)he question here is whether respondent, in the exercise of its discretion, has in any way departed from the statutory limitations placed thereon by the legislature. That mandamus may be employed to require the Board to act legally, or to abide by the law, without specifying what it should do within the limitations provided in the statute, would seem to accord with the rule. (Citing cases.) * * *.'

Conston v. New Mexico State Board of Probation and Parole, 79 N.M. 385, 444 P.2d 296 (1968).

While revocation of parole rests in the sound discretion of the Board, we perceive that mandamus is available to petitioner to assure that the Board, in its orders revoking parole, complies with any applicable statutory provisions.

In affirming the decision of the trial court, we hold that § 41--17--28(C), supra, has no application to the facts presented in this appeal. The necessary steps to complete petitioner's release on parole had not been accomplished. It follows that the Parole Board's action in revoking a 'pending' parole was within the discretion of the Board.

Section 41--17--28(C), supra, regarding a parole revocation hearing, relates to the statutory procedures to be followed when an inmate released on parole is charged with violating any of the conditions of release. Section 41--17--28, N.M.S.A., 1953 Comp., is entitled 'Return of parole violator.' The definition of 'parole,' as specified in § 41--17--14(B), N.M.S.A., 1953 Comp.:

'* * * means the release to the community of an inmate of an institution by decision of the board prior to the expiration of his term, subject to conditions imposed by the board and to its supervision;' (Emphasis added.)

Furthermore, § 41--17--28(A), N.M.S.A., 1953 Comp., indicates that:

'At any time during release on parole the board or the director may issue a warrant for the arrest of the released prisoner for violation of any of the conditions of release, * * *. The warrant shall authorize the superintendent of the institution from which the prisoner was released to return the prisoner to the actual custody of the institution * * *.' (Emphasis added.)

It is upon the culmination of the process outlined above, as well as the other applicable provisions of § 41--17--28, supra, that the required parole revocation hearing is to be afforded. To require a hearing subsequent to the granting of a parole, which is contingent upon approval of a parole 'plan' and the various other steps necessary for release but prior to actual release, is not within the meaning of § 41--17--28, supra. To give the statute any other construction would be to destroy the object sought to be accomplished by the legislature.

Approving a parole plan consists of spelling out the terms and conditions of the parole. If the return of a parole violator is predicated upon 'violation of any of the conditions of release,' § 41--17--28, supra, it is clear that an approved parole plan which spells out the terms and conditions of release is a vital and necessary step to any release. In addition, it is a well-established rule that there must be an acceptance of the terms and conditions of the parole agreement, which must be signed by the convict before the said parole becomes legally effective to secure his release from the institution. See 59 Am.Jur.2d, Pardon and Parole, § 86. Petitioner's claim, that there should be a hearing pursuant to § 41--17--28(C), supra, on the parole violation charged, ignores the clear indication of § 41--17--28, supra, that such violation refers to a 'violation of any of the conditions of release,' all of which were pending approval and none of which in fact had ever been presented to the Board.

A case almost identical on the factual situation by Koptik v. Chappell, 116 U.S.App.D.C. 122, 321 F.2d 388 (1963). There the trial judge...