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Smith v. Department of Corrections

Florida Court of Appeals, Second District

June 1, 2018

ARTHUR LEE SMITH, Petitioner,
v.
DEPARTMENT OF CORRECTIONS and COMMISSION ON OFFENDER REVIEW, Respondents.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

          Petition for Writ of Certiorari to the Circuit Court for Desoto County; Kimberly Bonner, Judge.

          Arthur Lee Smith, pro se.

          Mark Hiers, Assistant General Counsel, Tallahassee, for Respondent Commission on Offender Review.

          Beverly Brewster, Assistant General Counsel, Tallahassee, for Respondent Department of Corrections.

          LaROSE, Chief Judge.

         Arthur Lee Smith petitions this court for a writ of certiorari. He contests the trial court's order denying his habeas corpus petition addressed to the revocation of his conditional release supervision. We have jurisdiction. See Fla. R. App. P. 9.030(b)(2)(B); see also Tarver v. Fla. Parole Comm'n, 990 So.2d 577, 578 (Fla. 3d DCA 2008) ("[W]e treat the appeal [from the trial court's order denying a habeas petition pursuing review of the parole commission's decision to revoke conditional release] as a petition for writ of certiorari, and review the circuit court's denial pursuant to the applicable standard in cases involving second-tier certiorari."). We deny his petition.

         Background

         In 1991, the trial court sentenced Mr. Smith to prison for armed robbery. He was released on conditional release supervision in September 2009. His supervision was to end in 2020. Unfortunately for Mr. Smith, he violated his conditional release by committing several new offenses.

         Upon receipt of a notice of violations from the Florida Commission on Offender Review (Commission), Mr. Smith, on July 22, 2016, executed a "Notice of hearing, " in which he elected to postpone his conditional release violation hearing until disposition of his new law violations. Thereafter, on March 1, 2017, he signed a Waiver of Conditional Release Violation Hearing. On or about March 15, 2017, the Commission provided Mr. Smith with an amended notice of violations. This amended notice apparently added two additional violations of supervision. Mr. Smith signed the amended notice, and placed his initials next to a preprinted statement affirming that he "hereby freely and voluntarily waive[d] [his] right to [a] violation hearing." The Commission subsequently revoked his conditional release. Several months later, Mr. Smith filed a habeas corpus petition challenging his continued detention. The trial court summarily denied relief.

         Mr. Smith's Certiorari Petition

          Mr. Smith seeks immediate release from prison and reinstatement to conditional release. He makes two arguments. First, he denies that he signed the notice postponing his hearing. Absent his agreement, he contends that the Commission had to conduct the violation hearing within forty-five days of his arrest. See § 947.141(2), Fla. Stat. (1991) ("Within 45 days after the arrest of a releasee charged with a violation of the terms and conditions of conditional release, the releasee must be afforded a hearing conducted by a commissioner or a duly authorized representative thereof."). Because no hearing took place within that time, Mr. Smith wants to be released from prison.

         Second, Mr. Smith contends that he never signed a valid waiver of hearing for the March 15, 2017, amended notice. He admits to signing a waiver for the original notice. Yet, he asserts: (1) he has no recollection of signing the amended notice; and, (2) even if he did sign it, the notice was ...


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