Kelly v. Florida Parole Commission

District Court of Appeal of Florida

Kelly v. Florida Parole Commission

728 So. 2d 1223, 1999 Fla. App. LEXIS 4252, 1999 WL 183528

CourtDistrict Court of Appeal of Florida

DecidedApril 6, 1999

DocketNo. 98-2656

StatusPublished

Cited by1 cases

This text of 728 So. 2d 1223 (Kelly v. Florida Parole Commission) 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

Kelly v. Florida Parole Commission, 728 So. 2d 1223, 1999 Fla. App. LEXIS 4252, 1999 WL 183528 (Fla. Ct. App. 1999).

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Opinion

JOANOS, J.

Appellant pled nolo contendere to first degree murder, a capital felony, in 1997, for an offense that occurred in 1996. Pursuant to a plea agreement, the trial court sentenced him to life in prison with a provision that he would be eligible for parole after 25 years. Appellant asserts that, at the time of sentencing, the court, the prosecutor, and the defendant realized there might be a problem with the sentence imposed, because as of May, 1994, section 775.082(1), Florida Statutes, was amended to provide no parole eligibility for a defendant convicted of a capital felony. Appellant further asserts that all parties agreed that if the sentence were determined to be invalid, appellant would be considered to have pled to second degree murder and would receive a 30-year sentence.

Appellant filed a complaint for declaratory judgment, naming the Parole Commission as defendant, seeking a declaration that, under the plea agreement, the Commission would have to consider him eligible for parole after 25 years. The trial court ruled that the Commission had no authority to consider appellant for parole after 25 years. This appeal followed.

[1224]*1224We agree with the Parole Commission’s contention that it cannot consider appellant eligible for parole after 25 years, as it does not have statutory authority to do so. To the extent that appellant may have a remedy, it would be in the sentencing court.

AFFIRMED.

BOOTH and WEBSTER, JJ., CONCUR.

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JOANOS, J.

Appellant pled nolo contendere to first degree murder, a capital felony, in 1997, for an offense that occurred in 1996. Pursuant to a plea agreement, the trial court sentenced him to life in prison with a provision that he would be eligible for parole after 25 years. Appellant asserts that, at the time of sentencing, the court, the prosecutor, and the defendant realized there might be a problem with the sentence imposed, because as of May, 1994, section 775.082(1), Florida Statutes, was amended to provide no parole eligibility for a defendant convicted of a capital felony. Appellant further asserts that all parties agreed that if the sentence were determined to be invalid, appellant would be considered to have pled to second degree murder and would receive a 30-year sentence.

Appellant filed a complaint for declaratory judgment, naming the Parole Commission as defendant, seeking a declaration that, under the plea agreement, the Commission would have to consider him eligible for parole after 25 years. The trial court ruled that the Commission had no authority to consider appellant for parole after 25 years. This appeal followed.

[1224]*1224We agree with the Parole Commission’s contention that it cannot consider appellant eligible for parole after 25 years, as it does not have statutory authority to do so. To the extent that appellant may have a remedy, it would be in the sentencing court.

AFFIRMED.

BOOTH and WEBSTER, JJ., CONCUR.

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Bluebook (online)

728 So. 2d 1223, 1999 Fla. App. LEXIS 4252, 1999 WL 183528, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kelly-v-florida-parole-commission-fladistctapp-1999.

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