Moore v. StateMoore v. State
In this appeal from a sentence in a murder case the appellant assigns as error the method by which the trial judge retained jurisdiction to review any parole release order issued during the first third of appellant‘s term of confinement.
Under the provisions of section
While we agree the statute mandates a sentencing judge to state justification for his retention of a veto power over the release of a convict, we find no guidelines for the trial judge to follow. Thus we assume each order retaining jurisdiction must be based upon articulated substantial reasonable grounds to be determined in each case and, as the statute says, “with individual particularity.”
It is our assumption that the Legislature meant to allow review of these orders retaining jurisdiction because the statute requires the justification to be made a part of the court record. This review is rather like the review in a habitual felony offender sentence, section
Without going into the basis of our government and a treatise on the theories and applications of the separation of powers, it is sufficient, hopefully, to say that the Legislature has the sole authority to determine what acts are criminal acts and what the penalties for crimes are to be. The legislative authority in the penalties area allows for the setting of maximums and minimums, both of confinement and probation, the limits and guidelines for parole, and the particular means and methods of execution of sentences. The courts have the sole province over the particular sentence to be given an individual, but only within the statutory authority given in the various sentencing statutes, and the executive has the duty to see that the sentences are enforced. The executive performs its function through the governor and cabinet in its pardon and parole authority, and with the parole and probation commission in its statutorily limited powers, and finally, the Department of Corrections in its particular field, also statutorily limited.
All of this is to say the Legislature had the authority to say how a sentencing judge may retain jurisdiction over an offender and thus had the authority to require that it be done only with individually particularized justification. In this case the sentencing judge justified in the record the reasons for retaining jurisdiction by pointing out that the appellant had committed the most serious offense of murder, she has a reputation of aggressive behavior and she had served a sentence for hitting someone with an iron. A reputation for and a conviction of aggressive and injurious behavior is certainly sufficient justification for the retention of jurisdiction in a murder case. We affirm the sentence.
AFFIRMED.
FRANK D. UPCHURCH, Jr., J., concurs.
COWART, J., concurs specially with opinion.
COWART, Judge, concurring specially:
I agree the sentencing judge properly justified retaining jurisdiction to review any parole release order and that the case should be affirmed. Merely because the statute set no guidelines I am unwilling to assume that the legislature intended such justification be based on grounds reviewable for substance and reasonableness by an appellate court. The statute does not say this and logic does not lead to this conclusion. Everything a trial judge does should be done in a reasonable manner but that does not mean that everything he does is, or should be, reviewable by appeal.
Trial court action to retain and review parole releases, is in three steps: (1) At sentencing the trial court enters an order retaining jurisdiction to review a parole commission release order stating the justification therefor with individual particularity; (2) within ten days of notice of a release order the sentencing court must notify the commission it still desires to retain jurisdiction; and (3) within thirty days of receiving the release order and documentation from the commission, the sentencing court must review the commission release order, its findings and the evidence upon which it is based, and if the trial court finds either that (a) the release order is not based on competent substantial evidence, or (b) that the parole is not in the best interest of the community or the inmate, the trial court may vacate the release order. The initial decision to retain jurisdiction is not conditional upon any evidence or finding of fact and is not subject to any statutory guidelines or criteria. It is purely an exercise of general judgment in contemplation of the possible desirability of later judicial action. Obviously, the first two procedural steps, merely retaining jurisdiction, are not as consequential as the later actual judicial act of exercising the retained authority with its required review of the commission‘s findings and of the quality of the supporting evidence and its effect of preventing release from prison.3 To hold that the trial court‘s initial decision retaining jurisdiction is reviewable on appeal when its ultimate action, actually vacating parole, is not reviewable creates an amazing legal paradox; yet this is the result here because the final action of the trial court vacating or approving the parole release order is not appealable. Section
The requirement of “justification with individual particularity” causes the trial judge to reconsider the purpose of the statute in each case rather than to approve it in principle and to retain jurisdiction in every sentence. The requirement of a record permits the sentencing judge or his successor, to later have a record of why the initial decision was made in that particular case; it also serves to cause the parole commission to send a notice of the release order to the trial court under Section