138 N.W.2d 541 | Mich. Ct. App. | 1966
In re LANE.
Michigan Court of Appeals.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Charles C. Conklin, Assistant Attorney General, for the Michigan Department of Corrections.
Albert Best, for Edgar Elton Lane.
Leave to appeal denied by Supreme Court December 20, 1965.
Habeas corpus granted by Supreme Court January 11, 1966. See 377 Mich. 693, 695, 700.
LESINSKI, C.J.
On reading and filing of plaintiff's complaint for a writ of habeas corpus, an order was issued requiring the Michigan department of corrections, bureau of pardons and paroles, to show cause on November 4, 1965 why a writ should not issue. Oral arguments were presented.
The detained party for whose benefit the said writ was sought is Edgar Elton Lane. Lane was arrested on a Federal charge on May 12, 1965 and was imprisoned in the Wayne county jail. On May 13, 1965, the Michigan department of corrections filed a detainer with the Wayne county authorities charging Lane with a parole violation. He had been on parole from the State Prison of Southern Michigan *142 since August, 1963. On September 17, 1965 Lane posted a $1,000 bond and was released from custody of the Federal court. However, he was immediately returned to Wayne county jail by the Michigan department of corrections on the charge of parole violation. On the same day a writ of habeas corpus was issued in the circuit court for the county of Wayne. A hearing was had on the writ on September 20, 1965 and Lane was discharged on the grounds that the Michigan department of corrections had not acted pursuant to CLS 1961, § 791.240 (Stat Ann 1954 Rev § 28.2310).
On September 21, 1965, Lane's attorney and an assistant attorney general were called in by the trial judge who had ordered Lane's release and a rehearing was held without the prisoner being present. At this time the writ was ordered dismissed and Lane was remanded to custody. Lane was removed by the Michigan department of corrections to the State Prison of Southern Michigan on September 22, 1965, and has been incarcerated there since that date. An appeal from the circuit court order was filed with this Court on September 24, 1965, and is presently pending.
At the hearing to show cause why a writ of habeas corpus should not be issued, it was determined from presentations by counsel for Lane and by the assistant attorney general that more than 30 days had elapsed since the Michigan department of corrections filed a detainer with the Wayne county authorities accusing Lane of a violation of his parole, and also more than 30 days had elapsed since Lane was returned to prison and no formal parole violation hearing has been held. It was not argued that the warrant for commitment was defective. The assistant attorney general advised the court and the attorney for Lane did not dispute that within *143 20 days after confinement at the prison Lane was allowed to plead to the charge of parole violation at which time he pled not guilty and a formal hearing was set for November 17, 1965.
No testimony in this cause was ordered taken as the court did not feel that any of the matters asserted would affect the final decision of the question before this Court.
Counsel for Lane argued that the effect of CLS 1961, § 791.240 (Stat Ann 1954 Rev § 28.2310) constitutes a statute of limitations, and that failure to hold said hearing within 30 days of either filing of the detainer by the Michigan department of corrections, or within 30 days after having been remanded to the custody of the Michigan department of corrections, effectively bars the authorities from taking further action upon the alleged parole violation. The statute reads in part as follows:
"Whenever a paroled prisoner is accused of a violation of his parole * * * he shall be entitled to a fair and impartial hearing of such charges within 30 days before two members of the parole board."
A careful study of the section and attending law does not lead this Court to complainant's conclusion. We hold that the failure to hold a parole violation hearing within 30 days after obtaining jurisdiction over or custody of the prisoner does not constitute a bar to continued proceedings under CLS 1961, § 791.240 (Stat Ann 1954 Rev § 28.2310). To constitute a statute of limitations, the language of the statute must be express. See MacQueen v. City Commission of Port Huron (1916), 194 Mich. 328, 342; Jones v. Grand Ledge Public Schools (1957), 349 Mich. 1, 10.
This Court deems that the provisions of the statute are designed to assure an alleged parole violator *144 a speedy hearing on the charge of parole violation, and the board is therefore required to hold a fair and impartial hearing within 30 days of the accusation of a parole violation. Failure of the board to comply with the statute does give the detained party a remedy, this being by petition to the court for a writ of mandamus. (See Hazel Park Racing Association, Inc., v. Racing Commissioner [1953], 336 Mich. 508, 518, and cases cited therein.) Habeas corpus is not a proper remedy here.
The Court takes note of the statement of the assistant attorney general that the Michigan department of corrections has not published its rules and regulations governing parole violation hearings. The requirements of a fair and impartial hearing under CLS 1961, § 791.240 (Stat Ann 1954 Rev § 28.2310) require that the accused be properly apprised of the rules and regulations governing such a hearing in advance thereof either by submitting to the accused a copy of the rules and regulations adopted by the parole board for such hearings, or through publication of same in the usual manner for publishing rules of administrative bodies.[*]
It is hereby ordered that the petition for a writ of habeas corpus is denied. No costs, public question involved.
QUINN and WATTS, JJ., concurred.
NOTES
[*] See CL 1948, § 24.71 et seq., as amended (Stat Ann 1961 Rev § 3.560[7] et seq., as amended). REPORTER.
