Florida/Georgia Personal Injury & Workers Compensation

...l a hearing by the parole and probation commission or the court." Other pertinent statutory provisions, provide: "949.11 Hearing. — Any person whose parole or probation agreement is revoked pursuant to § 949.10 shall be given a hearing pursuant to § 947.23 or § 948.06. The hearing shall be held within ten days from the date of such arrest, the provisions of § 947.23 or § 948.06 notwithstanding....

...[5] Parole in Florida As a whole, parole revocation procedures in Florida largely parallel the parole proceedings contemplated by the United States Supreme Court in Morrissey. In fact, the parole revocation statute appears to codify the minimum due process requirements outlined in Morrissey. Compare § 947.23, Fla....

...Moreover, the exclusionary rule does not *1237 apply in parole revocation hearings. Pa. Bd. of Probation & Parole v. Scott, 524 U.S. 357, 359, 118 S.Ct. 2014, 141 L.Ed.2d 344 (1998). Further, although the parole revocation statute requires that the parolee be informed of the right to be represented by counsel, § 947.23(4)(b), Fla....

...[6] If the charges are sustained, the commissioners must enter an order revoking the parole and returning the parolee to prison to serve the sentence originally imposed, reinstating the original order of parole, ordering the placement of the parolee into a community control program, or entering such other order as is proper. § 947.23(6)(a)-(b), Fla....

..."deliberations" [6] of the Commission and meetings of the Commission at which parole matters are "decided". [7] The deliberations of the Commission are not required to be at meetings, nor is the public entitled to be present. See, Florida Statutes, § 947.23(6)....

...sion sentence, in that the petitioner was given credit toward completion of his robbery sentence for time served on the firearms possession conviction by the literal language of the court's order. Respondent next urges upon us the provisions of F.S. § 947.23(1), F.S.A....

...Krause, Ormond Beach, for petitioner. Robert L. Shevin, Atty. Gen., and A.S. Johnston, Asst. Atty. Gen., for respondent. BOYD, Justice. We have for consideration a question from the Seventh Judicial Circuit in and for Volusia County relating to constitutionality of Section 947.23, Florida Statutes, as it is incorporated in Sections 949.10, 949.11 and 949.12, Florida Statutes, in light of the holding of the United States Supreme Court in Morrissey v....

...pellate Rules, 32 F.S.A., 1962 Revision. Jaworski v. City of Opa-Locka, 149 So.2d 33 (Fla. 1963); Boyer v. City of Orlando, 232 So.2d 169 (Fla. 1970). The question presented by the trial in its Certificate of Great Public Interest is as follows: "Is Section 947.23 F.S.A....

...1756, 36 L.Ed.2d 656 (1973), this Court recognized that due process required that a hearing must be accorded to a person charged before parole could be revoked. Brill v. State, 159 Fla. 682, 32 So.2d 607 (1947). Additionally, we point out that in Morrissey, supra , the Supreme Court recognized that in Section 947.23(1), Florida Statutes, Florida had provided for a hearing in parole revocation cases (see footnote 15, Morrissey, 33 L.Ed.2d 484 at 498)....

...ssey there is required an "opportunity to be heard in person and to present witnesses and documentary evidence" as well as the "right to confront and cross-examine adverse witnesses" before "a `neutral ...' hearing body, such as a ... parole board"; § 947.23, Florida Statutes, specifically provides that a person charged with parole violation shall appear personally before the Parole Commission at a hearing at which both the parolee and the state may introduce such evidence as is necessary; implicit therein is the provision that after the evidence is introduced the parolee may confront and cross-examine the state's witnesses; (2) in Morrissey, supra , a "written statement by the factfinders" is required, while in § 947.23, Florida Statutes, provision is made for the Commission to "make findings on such charge of parole violation"; and (3) in Morrissey, supra , it is required that the parolee receive "written notice of the claimed violations" and a "disclosure ... of the evidence against him"; although § 947.23, Florida Statutes, as implemented by Rule 23-2.09 of the Parole and Probation Commission, Florida Administrative Code, does not specify "written" notice and "disclosure of evidence," we find implicit in the remainder of the statute that "due notice" be given Ware v....

...ue notice" — as amplified and enlarged by that decision — requires written notice to the parolee of the alleged violations, including a disclosure of the evidence against him. Accordingly, the certified question is answered negatively, and we hold Section 947.23, Florida Statutes, to be constitutional....

...ntil his return to Florida that he was entitled to a hearing within ten days of his return. Section 949.11, Florida Statutes, provides that any person whose parole or probation is *1125 revoked pursuant to 949.10 shall be given a hearing pursuant to section 947.23 or section 948.06 within ten days....

...2d DCA 1978).) Indeed, there is a greater need to assure counsel to safeguard these constitutional protections because parole revocation proceedings are conducted by a commission representative who is not an attorney in both the preliminary hearing, see Fla. Admin. Code Rule 23-21.22(7), and the final revocation hearing, see § 947.23, Fla....

...Petitioner filed a petition for writ of habeas corpus in this Court setting out the above facts and alleging further that he was unlawfully detained because his parole had been wrongfully revoked because the hearing before the Commission on March 17, 1954, did not meet the requirements of Section 947.23, F.S....

...Section 947.22 provides that if any member of the Commission or any parole supervisor has "reasonable ground" to believe that a parolee has violated the terms of his parole in a "material respect," the parolee under outlined procedure shall be brought before the Commission; Section 947.23(1), F.S....

...*1001 James Taylor, appellant in pro. per. Bradford L. Thomas, Asst. Gen. Counsel, for appellees. ERVIN, Judge. Appellant, James Taylor, appeals the summary denial of his petition for writ of habeas corpus on the ground that the Florida Parole Commission did not comply with Section 947.23, Florida Statutes (1987), which deals with parole revocation proceedings....

...ating parole. The Commission held a preliminary hearing on August 12, 1987 "to determine if there [was] probable cause or reasonable grounds to believe that the parolee ... committed a violation of the terms or conditions of his parole," pursuant to section 947.23(1). Taylor claims that the Commission did not provide him with a copy of the findings from the preliminary hearing, thus violating the following requirement of section 947.23(1): The findings based on the evidence presented at the preliminary hearing shall be made available to the parolee either immediately following the hearing or within a reasonable time thereafter. Nothing in the record indicates that either a written or oral statement of findings was made. See Hansen v. Duggar, 536 So.2d 1169, 1172-73 (Fla. 1st DCA 1988) (notice of findings under section 947.23(1) is not required to be in written form)....

...ssential, and because a parolee cannot determine whether this requirement was met unless he or she is informed of such findings, we conclude that Taylor's due process rights were violated once the Commission failed to comply with this requirement of section 947.23(1)....

...and Florida's Fifth District Court of Appeal require a showing of prejudice in addition to a statutory violation, we are persuaded that the same determination should be made with respect to a violation of the notification of findings requirement of section 947.23(1)....

...1962, 139 So.2d 429; Porter v. State, Fla.App.1st, 1968, 212 So.2d 828. See also Starnes v. Connett, 5th Cir.1972, 464 F.2d 524, which dealt with an analogous statute. The courts of Florida have held that gain time is forfeited by operation of the provisions of § 947.23(2) F.S....

...328, 249 A.2d 549 (1969); Warren v. Michigan Parole Board, 23 Mich.App. 754, 179 N.W.2d 664 (Ct.App. 1970), appeal dismissed, 184 N.W.2d 457 (Mich.1971); People ex rel. Menechino v. Warden, 27 N.Y.2d 376, 318 N.Y.S. 2d 449, 267 N.E.2d 238 (1970). [8] Fla.Stat. § 947.23(1), F.S.A....

...Commission ultimately determined that the violation of the conditions of parole did not require revocation. The Fifth District in Girtman also recognized that Florida Statutes distinguish between being committed to jail pending hearings pursuant to section 947.23, Florida Statutes, for parole violations and the more formal commitment to the Department of Corrections which occurs after sentencing....

...Appellee's request for bond was denied, so he petitioned for habeas corpus and, after a hearing, was released. Appellant contends Section 947.22, Florida Statutes (1977), allows for incarceration when a parolee violates a condition of his parole, and Section 947.23 demands a parole revocation hearing "[a]s soon as practicable after the arrest......

...y and temporarily revokes parole, the parolee to remain in custody. Section 949.11 requires a hearing on parole revocation after arrest on a felony charge, but: The hearing shall be held within 10 days from the date of such arrest, the provisions of s. 947.23 ....

..... notwithstanding. Failure of the commission or the court to hold the hearing within 10 days from the date of arrest shall cause the immediate release of such person from incarceration on the temporary revocation. [Emphasis supplied.] Reference to Section 947.23 in Section 949.11 suggests that rather than holding the hearing "as soon as practicable after the arrest," in the case of a parolee who is arrested on a subsequent felony charge the ten-day limitation applies....

...Johns County (his parole having been automatically revoked by the terms of Section 949.10) and then rearrested and reincarcerated in Duval County. Given the language of Section 949.11, it would appear the Legislature created a specific exception to Section 947.23 when a parolee is arrested on a felony charge....

...are not yet released, to comply with the due process standards specified for parole revocation in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). Parole revocation hearings are conducted by the Commission or a Commissioner. Section 947.23....

...oked and such person shall remain in custody until a hearing by the Parole and Probation Commission or the court. 949.11 Hearing. — Any person whose parole or probation agreement is revoked pursuant to s. 949.10 shall be given a hearing pursuant to s. 947.23 or s. 948.06. The hearing shall be held within 10 days from the date of such arrest, the provisions of s. 947.23 or s....

...The failure of the State to take advantage of this mechanism does not render the parolee forever immune from arrest by a parole officer for a violation of a condition of parole. The provision of Section 949.11 which states that a parolee must be given a hearing within 10 days, notwithstanding Section 947.23, does not mean that the normal adjudicatory procedures of Section 947.23 must be altogether abandoned, but rather, Section 949.11 only changes the timing of the hearing with regard to the temporary revocation. Sections 949.10 and 949.11 do not act as a substitute for the formal procedure for parole violations defined in Section 947.23; they only mandate that a paroled felon, arrested for the commission of a felony, will have his parole temporarily revoked for ten days. At any time after the new arrest the Commission may commence formal revocation proceedings pursuant to Sections 947.22 and 947.23....

...This marked the initiation of formal proceedings against the appellee, and the provisions of Sections 949.10 and 949.11 became irrelevant at this point in time. Consequently, the validity of Sylvester's detention depended upon adherence to the requirements of Sections 947.22 and 947.23, not the application of Sections 949.10 through 949.12....

...sense. It is a narrow inquiry; the process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial. Id., 408 U.S. at 489, 92 S.Ct. at 2604; see also § 947.23, Fla....

...arrying a weapon without securing the consent of his parole supervisor, as an alternative basis for revoking appellant's parole. Revocations of parole for technical violations, unlike revocations based upon subsequent felony arrests, are governed by Section 947.23, Florida Statutes (1979), which formerly had required a preliminary hearing "as soon as practicable after the arrest of the person charged with the violation of the terms of his parole." [3] Technical parole violations are not governed by the rule in Miller v. Toles . Appellant in the habeas petition currently on appeal to this court did not object to the scheduling of the preliminary hearing for the technical parole violation pursuant to section 947.23....

...challenge the correctness of the revocation based upon the technical violation below, nor argue it on appeal, we affirm. We therefore decline to consider whether the preliminary hearing for appellant's technical parole violation was consistent with section 947.23, or with the due process requirements of the United States Constitution, as outlined by the United States Supreme Court in Morrissey v. Brewer, 408 U.S. 471, 485, 92 S.Ct. 2593, 2602, 33 L.Ed.2d 484 (1972). Appellant, however, did state in his petition that he had objected to the scheduling of the final revocation hearing as in violation of section 947.23....

...he act of sexual battery. [2] Sections 949.10 and 949.11 upon which the Miller opinion was based were repealed by Ch. 82-171, § 18 Laws of Fla. All parole revocation proceedings subsequent to the repeal of sections 949.10 and 949.11 are governed by section 947.23. [3] Section 947.23 was later amended by Ch....

...imposed on him in 1955 and denied him his constitutional right to counsel at the revocation hearing. In our opinion, this case is controlled by our decision in Shiplett v. Wainwright, 198 So.2d 647 (Fla.App.1967), in which we held that the statute (Section 947.23, Florida Statutes, F.S.A.), allowing a parolee to have the representation of counsel at a hearing on revocation of parole, was permissive and that due process of law did not require that an indigent parolee be provided with counsel....

...are not yet released, to comply with the due process standards specified for parole revocation in Morrissey v. Brewer, 408 U.S. 471 , 92 S.Ct. 2593 , 33 L.Ed.2d 484 (1972). Parole revocation hearings are conducted bythe Commission or a Commissioner. Section 947.23....

...(2) commission of a sexual battery on April 24, 1980, in Leon County (Condition 8). An initial interview was held on May 12, 1980, during which Hansen requested a preliminary hearing to determine probable cause for the parole violations pursuant to section 947.23, Florida Statutes....

...983. An order revoking parole was entered on May 25, 1983. In his May 15, 1987 petition for writ of habeas corpus, Hansen raised five grounds: (1) that the June 17, 1980 preliminary hearing took place 47 days after Hansen’s arrest, in violation of section 947.23(1), Florida Statutes; (2) that the preliminary hearing was not held “at or near the place of violation or arrest,” in violation of section 947.23(1), Florida Statutes; (3) that appellant was not given timely notice of the date of the preliminary hearing, in violation of section 947.23(l)(a); (4) that appellant was denied the right to cross-examine adverse witnesses, in violation of 947.23(l)(b), since neither of the only witnesses who allegedly saw the violation of condition 7 (Ms....

...Over-lease and Ms. Boals) were present at the preliminary hearing, and no reason was given for their absence; and (5) that appellant was not furnished with a copy of the findings of the preliminary hearing until five years after the hearing, in violation of section 947.23(1), Florida Statutes. We find the trial court to have been correct in dismissing ground 2 of the petition. Section 947.23(1), Florida Statutes, requires that a preliminary hearing to determine if there is probable cause to believe that parole has been violated shall be held “at or near the place of violation or ar-rest_” Since the parole revocation wa...

...*1348 The trial court erred, however, m summarily dismissing grounds 1, 3, 4, and 5 of the petition. In keeping with the due process requirements of the U.S. Constitution, as outlined by the United States Supreme Court in Morrissey v. Brewer, 408 U.S. 471 , 92 S.Ct. 2593 , 33 L.Ed.2d 484 (1972), section 947.23(1), Florida Statutes (1979) required that a preliminary hearing on revocations of parole for technical parole violations be held “[as] soon as practicable after the arrest of a person charged with violation of the terms and condition...

...Legislature in 1982, after Hansen’s alleged technical parole violations, to require a preliminary hearing within 30 days of arrest. The 47-day delay between Hansen’s arrest and his preliminary hearing would therefore appear to be a violation of section 947.23(1), in the absence of any waiver by the appellant. See Fowler v. Cross, 635 F.2d 476 (5th Cir.1981), finding a 50-day delay between arrest and hearing to violate the requirements of section 947.23(1) and of Morrissey ....

...nt, summary denial of this point appears to be erroneous. Hansen’s third claim also appears to be at least facially meritorious, since appel-lee does not deny that Hansen failed to receive timely notice of the June 17, 1980 hearing, as required by section 947.23(l)(a), but argues only that Hansen could not have been prejudiced thereby since his attorney requested the delay....

...Similarly, appellees do not dispute Hansen’s fifth ground, but argue only that Hansen failed to show how he was prejudiced by his failure to receive a personal copy of the findings, and failed to allege that his attorney did not receive a copy. As section 947.23(1) clearly mandates that “[t]he findings based on the evidence presented at the preliminary hearing shall be made available to the parolee either immediately following the hearing or within a reasonable time thereafter,” this ground is at least facially meritorious. Last, section 947.23(l)(b) mandates that a parolee “shall be permitted to cross-examine adverse witnesses, unless it is determined that good cause exists not to allow such examination.” Hansen alleges that since neither of the two witnesses who allegedly observed him violate condition 7 of his parole were present at the preliminary hearing, and no reason was given for their absence, section 947.23(l)(b) was violated....

...ontention that a parolee is entitled to appointment of counsel as a matter of right to represent him in a proceeding before the Parole Commission where the purpose of such proceeding is to determine whether the parolee is guilty of parole violation. Section 947.23(1), Florida Statutes, F.S.A., relating to hearings in cases of alleged parole violations states in material part, “ * * * if he desires, he may be represented by counsel * * The quoted language concerning representation by counsel is permissive only....

...hird Floor Tallahassee, Florida 32301 Dear Ms. Mitchell: This is in response to your request for an opinion on the following question: MAY HEARING EXAMINERS EMPLOYED BY THE FLORIDA PAROLE AND PROBATION COMMISSION SERVE SUBPOENAS ISSUED PURSUANT TO s 947.23 , F.S., UPON WITNESSES TO COMPEL THEIR ATTENDANCE AT THE REVOCATION HEARINGS REQUIRED UNDER SAID STATUTE? According to your letter, the Parole and Probation Commission currently uses the services of the sheriff's office in each county of the state to serve witness subpoenas issued by the commission for the attendance of witnesses at proceedings conducted under s 947.23 , F.S., to determine alleged violations of parole....

...vocation proceeding in that case. Pursuant to s 947.13 (1)(c), F.S., the Florida Parole and Probation Commission is charged with the responsibility of determining violations of parole and what action shall be taken with reference to such violations. Section 947.23 (1), F.S., requires that within 30 days after the arrest of a person charged with violating the terms and conditions of his parole, the parolee shall be afforded a prompt preliminary hearing, conducted by a member of the commission or...

...ounds to believe the parolee has violated the terms or conditions of his parole. If the preliminary hearing results in a finding of probable cause or reasonable grounds to believe that a violation of the terms or conditions of parole has occurred, s 947.23 (2) provides that "the commission or a member or duly authorized representative of the commission shall convene a hearing on the alleged violation....

...Cf., s 947.095, F.S., providing that hearing examiners shall be assigned on the basis of case load needs, as determined by the chairman, and shall have the authority to conduct hearings and interviews and to make recommendations with respect to presumptive and effective parole release dates. Section 947.23 (3), F.S., authorizes the commission, commissioner, or its duly authorized representative to, inter alia, issue witness subpoenas and provides that subpoenas issued thereunder shall be enforceable by appropriate proceedings in circuit court....

...the commission (and the representatives, agents and employees of the commission in carrying out its duties) would not be considered a party for purposes of Rule 28-5.301(4). Moreover, both s 120.58(1)(b), F.S. and Rule 28-5.301, F.A.C., read with s 947.23 (3), F.S., empower the commission (or agency) or its members or authorized representatives only to issue subpoenas and do not in terms purport to delegate the authority to the commission or its members or authorized representatives to serve an...

...ave waived his right to a hearing before two or more members of the Commission and, therefore, it is ordered that the writ of habeas corpus, which was issued on the representation that the petitioner had not had a hearing such as was contemplated by Section 947.23, Florida Statutes 19S9, F.S.A., be discharged....

...Stack, 286 So.2d 220 (Fla. 4th DCA 1973). Petition for habeas corpus GRANTED. MAGER, C. J., and DOWNEY and ALDERMAN, JJ., concur. . “949.11 Hearing. — Any person whose parole or probation agreement is revoked pursuant to § 949.10 shall be given a hearing pursuant to § 947.23 or § 948.06. The hearing shall be held within ten days from the date of such arrest, the provisions of § 947.23 or § 948.06 notwithstanding....

well. Section 947.23(2), Florida Statutes (1979). Morrissey, as well as the statute, Section 947.23(1),

...During the period of conditional release, the Commission is empowered to enforce the conditions of release by issuing a warrant for the offender’s arrest upon reasonable grounds to believe that the offender has violated such conditions. § 947.141. The Commission is empowered to revoke conditional release after a hearing. § 947.23....

PER CURIAM. This matter came on to be heard on the writ of habeas corpus previously issued and the return filed thereto and it appearing from the return that the petitioner has not been afforded a hearing in the manner contemplated by Section 947.23, Florida Statutes 1957, F.S.A., it is, therefore, ordered that the petitioner be discharged 31 December 1959 unless the Parole Commission meanwhile grants the petitioner a hearing in the manner prescribed by law and consequent upon the hearing determines that his parole should be revoked....

...However, this court held that technical parole violations were indeed outside the scope of Miller v. Toles. Because the suspension of parole until the final hearings was not based exclusively on the felonies, and because the appellant did not argue the preliminary hearing was untimely under section 947.23, Florida Statutes (1979), there was sufficient basis to affirm the lower court....

...The trial court again denied the petition without explanation. Hansen now appeals this latest denial. First, we note that no adequate explanation has been given as to why the appellant did not argue in the February 1984 petition that his preliminary hearing was untimely under section 947.23. While it may be true that Hansen had no way of anticipating the construction of Miller v. Toles as applying only to substantive parole violations at the time the second petition was filed, section 947.23 still afforded an alternative ground at that time....

...There was evidence presented at the preliminary hearing concerning possession of a knife by the appellant, and though this evidence was hearsay it was enough to establish probable cause or reasonable ground to believe a violation of parole conditions had occurred. Hansen further argues that the preliminary hearing violated section 947.23 which provides that parolees shall be permitted to cross-examine adverse witnesses....

...Hansen argues that this section affords parolees the right to examine persons material to the proceeding, namely the victims of the alleged batteries who were not called to testify by the appellant or the Commission. However, we find that the clear intent of section 947.23 is to allow parolees the right to cross-examine persons actually called to testify. Section 947.23(l)(b) provides: “[Parolee] shall be permitted to cross-examine adverse witnesses, unless it is determined that good cause exists not to allow such examination.” As we view the statute, the right to “cross-examine” relates only to witnesses produced at the hearing. Inasmuch as section 947.23(l)(c) *1172 affords parolees the right to call witnesses, appellant was free to examine the victims of the alleged battery....

...Fontana, 517 So.2d at 716 , we held that there is no denial of the right to cross-examine witnesses under section 947.-23(4)(f) when a person is not called to testify, and that person’s testimony is not used against the parolee. We find the reasoning of Hansen v. Fontana, supra, equally applicable to hearings under section 947.23(1)....

...knowingly postponed the date of the preliminary hearing. Therefore, appellant will not be heard to argue that his hearing was untimely. We do not agree with appellant that a request or agreement for delay of a preliminary hearing must be in writing. Section 947.23(1) provides simply that a parolee may “knowingly execute a waiver” of his right to a preliminary hearing....

...have so required as it did with respect to the waiver of a final hearing. Because the appellant requested the date on which the preliminary hearing was held, it follows that he received timely notice of it. Moving on to the next issue, we note that section 947.23(1), Florida Statutes (1979), provides in pertinent part: The findings based on the evidence presented at the preliminary hearing shall be made available to the parolee either immediately following the hearing or within a reasonable time thereafter....

...The statute continues: (2) If the preliminary hearing results in a finding of probable cause or reasonable grounds to believe that a violation of the terms or conditions of parole has occurred, the commission ... shall convene a hearing on the alleged violation. Appellant contends that section 947.23 requires that parolees receive a “personal copy of the findings.” At the preliminary hearing, appellant was told that there was probable cause to believe he violated two conditions of his parole, but that there was insufficient probable cause as to violation of the condition that he not leave Leon County without his parole supervisor’s consent. We believe this notification was sufficient under the statute absent a showing of prejudice resulting from a lack of notice. Section 947.23 does not in explicit terms require that parolees receive written, personal copies of findings made at preliminary hearings....

...*1173 which he has been charged.” The record reflects that the appellant was well aware of the charges leveled against him, and we fail to see how the appellant was denied due process at his preliminary hearing. In Hansen III, we did not hold that section 947.23(1) mandated parolees’ receipt of personal copies of findings; rather, we held only that the appellant’s argument on this point deserved consideration, and that the trial court erred in summarily dismissing this issue....

PER CURIAM. Delroy Gibson filed a petition for writ of habeas corpus or mandamus in the circuit court, complaining that he was being detained for a parole violation without ever having been afforded a hearing as required by section 947.23, Florida Statutes....

County. After a preliminary hearing pursuant to section 947.23, Florida Statutes, the first allegation was

PER CURIAM. Petitioner’s petition for a writ of habeas corpus has been duly considered and the same is hereby denied. § 947.23, F.S., F.S.A.; Shiplett v....