Opinion
No. 44815.
February 11, 1976.
Robert L. Shevin, Atty. Gen., and A.S. Johnston, Asst. Atty. Gen., for appellants.
Robert A. Harper, Jr., Gainesville, for appellee.
This is an appeal from a circuit court order, in a habeas corpus proceeding, declaring unconstitutional Sections 949.10, 949.11, and 949.12, Florida Statutes (1973). These statutes relate to a probationer's or parolee's subsequent arrest for a felony, the evidentiary effect of such arrest, and revocation hearing procedure.
We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.
The appellee, Lee, was convicted and sentenced in March of 1971 for breaking and entering. He was paroled in February, 1973, but in November, 1973, he was arrested and charged with breaking and entering, and grand larceny. Appellee filed a petition for writ of habeas corpus in the circuit court, raising his detention under the aforementioned statutes as the sole issue. By the time of the hearing, appellee was being held pursuant to a warrant for retaking a paroled prisoner under the provisions of Chapter 947, Florida Statutes. Consequently, the appellants asserted the constitutional issue was moot. The trial judge remanded the appellee to custody pursuant to the warrant for retaking a paroled prisoner. In his order, the trial judge also declared Sections 949.10, 949.11, and 949.12, Florida Statutes (1973), unconstitutional on the grounds that they violated the due process provisions of the state and federal constitutions. Further, the trial judge enjoined the Florida Parole and Probation Commission from applying these statutes to any proceedings brought pursuant to Chapter 947, Florida Statutes, and enjoined the application of these statutes to all cases "pending or hereafter instituted by the Florida Parole and Probation Commission" in the Eighth Judicial Circuit pending judicial review by a court of superior jurisdiction.
Subsequent to the trial court's order in December, 1973, this Court specifically upheld the constitutionality of the subject statutes in Genung v. Nuckolls, 292 So.2d 587 (Fla. 1974), and Bernhardt v. State, 288 So.2d 490 (Fla. 1974). No new issues are presented here.
We reverse the holding of the trial judge declaring Sections 949.10, 949.11, and 949.12, Florida Statutes (1973), unconstitutional, and reaffirm our holdings in Genung v. Nuckolls and Bernhardt v. State, supra.
It is so ordered.
ADKINS, C.J., and ROBERTS, BOYD and SUNDBERG, JJ., concur.
HATCHETT, J., concurs with opinion.
With difficult constitutional questions in the background, I am reluctant to reach the merits, because I am convinced the order appealed here was improper, as a procedural matter. The petition for writ of habeas corpus alleged that appellee Lee was illegally detained "pursuant to the provisions of the unconstitutional Statute, F.S. § 949.10, et seq. . . . which provides that the subsequent arrest on a felony charge in this State of [a parolee] . . . shall be prima facie evidence of the violation of the terms and conditions of . . . parole." In denying the habeas petition on the ground that Lee's detention was authorized on another basis, a conclusion which has not been questioned here, the trial court nonetheless declared Fla. Stat. §§ 949.10-12 (1973) unconstitutional and enjoined appellant commission from applying the statutes in any pending or future cause. This was not a class action; Lee was the sole habeas petitioner, and he sought release from custody, plain and simple. The pleadings will not support this unsolicited grant of habeas and declaratory relief to non-litigants, in my opinion.
As for Lee himself, the question of the validity of the statutes is mooted by the uncontroverted finding of another, independent, lawful basis for his detention. The issue in the present case is one of pure custody. Since the lawfulness of that custody is not in dispute, only academic questions remain. (The rule is otherwise where a conviction assailed collaterally is only one of multiple bases for detention, Lawson v. State, 231 So.2d 205 (Fla. 1970), but a judgment of conviction entails many indirect consequences, which mere custody does not involve.) The trial court did not need to pass upon the validity of the statutes, in order to dispose of the cause before it, and the "portion of the judgment of the trial court which purported to pass upon the validity of the cited statute[s] is obiter dictum and premature and unnecessary." Williston Highlands Development Corporation v. Hogue, 277 So.2d 260, 262 (Fla. 1973).