Hansen v. Duggar

536 So. 2d 1169, 14 Fla. L. Weekly 133, 1988 Fla. App. LEXIS 5807, 1988 WL 139531
CourtDistrict Court of Appeal of Florida
DecidedDecember 30, 1988
DocketNo. 88-409
StatusPublished
Cited by1 cases

This text of 536 So. 2d 1169 (Hansen v. Duggar) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hansen v. Duggar, 536 So. 2d 1169, 14 Fla. L. Weekly 133, 1988 Fla. App. LEXIS 5807, 1988 WL 139531 (Fla. Ct. App. 1988).

Opinion

PER CURIAM.

Appellant Hansen appeals the denial of his petition for a writ of habeas corpus. The appellant alleges that his preliminary hearing for parole revocation was deficient in several respects. We find that none of the alleged infirmities require issuance of a writ of habeas corpus, and therefore we affirm.

The appellant pled guilty to second degree murder in 1970 and was sentenced to seventy-five years imprisonment. On February 18, 1979, Hansen was released on parole, subject to several conditions. He was arrested on April 28, 1980, for sexual battery. The Parole and Probation Commission (Commission) issued a warrant shortly thereafter charging four violations of parole: (1) leaving Leon County without consent of parole supervision, (2) carrying a knife without consent, (3) sexual battery in Gadsden County, and (4) sexual battery in Leon County. A probable cause hearing was requested on May 12, 1980. The hearing was held on June 17,1980, where it was determined that there was probable cause that the appellant committed the sexual batteries and carried a knife, but that there was insufficient probable cause concerning the departure from Leon County. Hansen was committed to prison pending a final hearing which was held on April 29, 1983. Hansen’s parole was revoked by the Commission which found that Hansen had violated his parole conditions by carrying a knife and committing a felony, Hansen v. Wainwright, 493 So.2d 38, 39 n. 1 (Fla. 1st DCA 1986). He was subsequently acquitted of both sexual battery charges.

Hansen filed an appeal with this court which dismissed, holding that his remedy lay in the circuit court by way of a petition for an extraordinary writ. Hansen v. Florida Parole and Probation Commission, 436 So.2d 349 (Fla. 1st DCA 1983). Hansen subsequently filed a petition for a writ of habeas corpus. The circuit court denied it, and we affirmed. Hansen v. Wainwright, 451 So.2d 852 (Fla. 1st DCA 1984).

Hansen’s second habeas petition, filed in February 1984, argued that the preliminary hearing to determine probable cause was not timely held. The trial court denied the petition, citing State v. Sylvester, 401 So.2d 1123 (Fla. 4th DCA 1981). A motion for reconsideration was filed, and the trial court issued an order to show cause. Shortly thereafter, Hansen filed an appeal, and the motion for reconsideration was deemed abandoned. On appeal, this court held that State v. Sylvester had been disapproved by the Supreme Court in Miller v. Toles, 442 So.2d 177 (Fla.1983) (a parolee incarcerated on the basis of a felony arrest must be given a hearing within ten days). Accordingly, this court reversed and remanded for an issuance of an order to show cause.

The Commission responded to the order to show cause by arguing, among other things, that Miller v. Toles was limited to substantive felony arrests. Since Hansen also committed “technical” violations of his parole, Miller v. Toles was not controlling. Furthermore, Hansen waived his right to a hearing within ten days. After considering this response, the circuit judge denied the petition.

On appeal of the denial, this court held that the record failed to disclose any evidence of waiver. 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. Hansen v. Wainwright, 493 So.2d 38 (Fla. 1st DCA 1986) (Hansen II).

Appellant filed a third petition for a writ of habeas corpus in December 1986, this time alleging errors in the final revocation hearing. A short time earlier, a civil suit had been filed seeking declaratory, injunc-tive and monetary relief. The trial court denied the petition. On review, this court held that the first five grounds raised in the petition were barred, as these were raised in the civil suit. The latter five grounds, however, were not barred by the [1171]*1171suit. The trial court’s denial was therefore reversed for consideration of those latter grounds. Hansen v. Fontana, 517 So.2d 714 (Fla. 1st DCA 1987).

Hansen filed another habeas petition on May 15, 1987, which addressed the timeliness of the preliminary hearing, among other things. Hansen attempted to include these issues in the December 1986 petition through a motion for a leave to amend. The December 1986 petition was denied before the motion was ruled upon. Because the denial of the December 1986 petition had been appealed, the circuit court felt it had no jurisdiction to hear the May 1987 petition. Therefore, it was summarily denied.

Appeal was again taken, and this court held that the appeal of the December 1986 petition [Hansen v. Fontana, supra], did not divest the circuit court of jurisdiction to consider the May 1987 petition which appeared to raise five facially meritorious issues. Hansen v. Dugger, 515 So.2d 1345 (Fla. 1st DCA 1987) (.Hansen III). This court, therefore, reversed the summary denial and remanded the case.

On remand, an order to show cause was issued to which the Attorney General and the Commission responded. 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. Obviously, limited judicial resources could have been spared.

In the instant appeal, Hansen argues that the summary denial of his petition was erroneous because the preliminary hearing was deficient in several respects. First, appellant argues probable cause was not established that he violated a condition of parole by carrying a weapon, and he was denied his statutory right to cross-examine witnesses. Appellant also argues that his preliminary hearing was not timely held nor was he afforded timely notice of that hearing. Finally, appellant contends that he was not given a personal copy of the findings made at the preliminary hearing.

As to the first issue, appellant argues that probable cause could not have been established because only the two victims of the alleged sexual batteries saw Hansen with the weapon. Because the victims did not testify to this fact at the preliminary hearing, Hansen asserts, probable cause could not have been established that appellant used a weapon. Appellant argues that there was no basis to hold him since no probable cause was found that he left the county, and that there could not have been probable cause as to the carrying a weapon allegation. Since this court previously held the hearing untimely as to the substantive violations (the felonies) in Hansen II, there were no violations found.

We reject this argument. 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.

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Related

Taylor v. Dugger
567 So. 2d 1000 (District Court of Appeal of Florida, 1990)

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Bluebook (online)
536 So. 2d 1169, 14 Fla. L. Weekly 133, 1988 Fla. App. LEXIS 5807, 1988 WL 139531, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hansen-v-duggar-fladistctapp-1988.