Smith v. Florida Parole Commission

971 So. 2d 1028, 2008 Fla. App. LEXIS 247, 2008 WL 89876

• Court: District Court of Appeal of Florida
• Decided: January 10, 2008
• Docket: 1D07-3606
• Status: Published

Opinion

971 So.2d 1028 (2008)

Daryl SMITH, Petitioner,
v.
FLORIDA PAROLE COMMISSION, Respondent.

No. 1D07-3606.

District Court of Appeal of Florida, First District.

January 10, 2008.

Daryl Smith, pro se, Petitioner.

Kim M. Fluharty, General Counsel, and Bradley R. Bischoff, Assistant General Counsel, Florida Parole Commission, Tallahassee, for Respondent.

PER CURIAM.

Petitioner seeks certiorari review of the denial of a petition for writ of habeas corpus under Sheley v. Florida Parole Commission, 720 So.2d 216 (Fla.1998). Because the facts of this case are substantially similar to Mathis v. Florida Parole Commission, 944 So.2d 1182 (Fla. 1st DCA 2006), we grant the petition.

The Florida Parole Commission issued a warrant charging petitioner with violating the terms of parole when he failed to be at his approved residence and by violating curfew. Petitioner entered a plea of guilty and the hearing examiner recommended reinstatement to parole with a strong letter of reprimand. Nonetheless, the Parole Commission revoked petitioner's parole. Petitioner asserts that the Parole Commission was bound by the hearing examiner's recommendation that he be reinstated to parole. This argument has been rejected by this court in Lopez v. Florida Parole Commission, 943 So.2d 199 (Fla. 1st DCA 2006) (stating that a hearing examiner's recommendation is non-binding).

However, the record shows that neither the hearing examiner's disposition recommendation nor the Parole Commission's revocation order contained a finding that petitioner's action constituted a willful violation of a substantial condition of parole. In Mathis, this court held that absent such a finding, the circuit court could not have reviewed the proceedings and determined that they were supported by competent substantial evidence and, because the circuit court did not apply the correct law, it could not have observed the essential requirements of the law. Accord Houck v. Fla. Parole Comm'n, 953 So.2d 692 (Fla. 1st DCA 2007).

Accordingly, we grant the petition, quash the circuit court's order and remand for further proceedings.

PETITION GRANTED.

ALLEN, VAN NORTWICK, and LEWIS, JJ., concur.