458 P.2d 711 | Or. Ct. App. | 1969
AFFIRMED. The appellant Gilmore petitioned the circuit court for a writ of habeas corpus alleging that he was illegally imprisoned in that an order of the Oregon State Board of Parole and Probation revoking his parole was without just or legal cause. He appeals from a judgment of dismissal of the writ on two grounds: (1) failure of the parole board to grant him a hearing prior to its order of revocation, and (2) abuse of discretion by the board in revoking his parole in that there was no credible evidence that he had violated the conditions of parole.
In 1957, Gilmore was committed to prison upon conviction on two counts of second degree murder. He was under the influence of intoxicants at the time he committed the murders. In 1965, he was placed on parole. At that time, in accordance with the provisions of ORS
The Oregon Supreme Court in Whalen v. Gladden,
"No inmate of a penal institution has a constitutional right to the enactment of a statute whereby he may secure a parole. Neal v. Himes [sic Hines],
180 Ky. 714 ;203 S.W. 518 . Nor does anyone have a constitutional right to the enactment of a parole statute whereby paroles can be terminated only in a manner which meets with his approval." Anderson v. Alexander, supra, at 451. (ROSSMAN, J., specially concurring.)
The Oregon statutes do not require a revocation hearing.
However, "* * * Even though a prisoner may not be entitled, under constitution or statute, to a hearing on revocation of parole, nevertheless, upon habeas *25 corpus he may always challenge the action of the administrative body if it acts beyond its statutory powers, or fraudulently, corruptly, or on mere personal caprice, or in the absence of any information, and, of course, he may, by his petition, raise the question of his identity as the convicted person * * *."Anderson v. Alexander, supra, at 430-31.
The burden of proof of arbitrariness is on the person whose parole is revoked. Anderson v. Alexander, supra, at 440.
Here, not only did Gilmore fail to show that the parole board acted arbitrarily in revoking his parole, but by his own testimony, both at the revocation review and in the court below, he proved the contrary by stating that he had violated the conditions of his parole on at least one occasion. The writ of habeas corpus was properly dismissed.
Affirmed.
FORT, J., dissents. *26