
    Keith BRUNO, Petitioner, v. Michael W. MOORE and Florida Parole Commission, Respondent.
    No. 98-3651.
    District Court of Appeal of Florida, First District.
    Aug. 20, 1999.
    Rehearing Denied Sept. 23, 1999.
    Robert Augustus Harper of Robert Augustus Harper Law Firm, P.A., Tallahassee, for Petitioner.
    Judy Bone, Assistant General Counsel, Department of Corrections; Bradley R. Bischoff, Assistant General Counsel, Florida Parole Commission, Tallahassee, for Respondent.
   BENTON, J.

We grant a petition for writ of certiorari that raises important questions about the proper role of the parole commission, acting as the control release authority, when a sentencing court has placed a criminal offender, already under control release, on community control and conferred supervisory authority on the department of corrections.

Keith Bruno filed a petition for writ of habeas corpus on grounds the parole commission, acting as the control release authority, failed to comply with section 947.146(10), Florida Statutes (1993), which provides, in part:

If any inmate placed on control release supervision is also subject to ... community control, the department shall supervise such person according to the conditions imposed by the court, and the authority shall defer to such supervision. If the court revokes ... community control, the authority, as the result of the revocation, may vacate the grant of control release.... If the term of control release supervision exceeds that of the ... community control, then supervision shall revert to the authority’s conditions upon expiration of the ... community control.

In the present case, the term of control release supervision exceeded the term of the community control. While Mr. Bruno was under control release, he was accused of a felony and placed on community control for one year, after which he might have returned to control release.

On June 7, 1993, a court withheld adjudication on the felony charge and placed Mr. Bruno on community control until June 6, 1994, with the condition that he spend six months at “Turning Point Bridge.” The control release authority decided against revoking control release. While Mr. Bruno was still on community control, the court that had placed him on community control deleted the “Turning Point Bridge” condition.

By then, the control release authority had also (originally following the sentencing court’s lead) made attendance and completion of the “Turning Point Bridge” program a condition of control release. Even though the court had deleted the condition, the control release authority revoked his control release for failure to remain in the program. In denying the petition for writ of habeas corpus, the court below found that,

although completion of the program was deleted as a special condition of ... community control, upon expiration of his community control [Mr. Bruno] again was subject to conditions of his control release, one of which was completion of the program.

The court below correctly ruled that Mr. Bruno would have been subject to control release supervision on appropriate conditions upon expiration of his term of community control. But Mr. Bruno was still on community control when the parole commission issued its control release violation warrant on October 29,1993.

First on the authority of the warrant, then by virtue of the control release authority’s revocation of his control release, he has been in custody since. If the control release authority determines after remand that, but for premature revocation of control release, Mr. Bruno would by now have been discharged, he should be discharged forthwith. See Downing v. State, 593 So.2d 607 (Fla. 5th DCA 1992) (reversing order revoking probation and discharging defendant); Chatman v. State, 365 So.2d 789 (Fla. 4th DCA 1978) (discharging defendant whose probation was erroneously revoked three months before it was to have terminated). See generally Haney v. Eyman, 97 Ariz. 289, 399 P.2d 905 (1965); People v. Andre, 37 Cal.App.3d 516, 112 Cal.Rptr. 438 (1974); State ex rel. Green v. Court of Appeal Second Circuit, 586 So.2d 148 (La.1991). Otherwise, the control release authority may order his return to control release on appropriate conditions.

The petition for writ of certiorari is granted, the order denying the petition for writ of habeas corpus is quashed, and the case is remanded for entry of an order granting the petition for writ of habeas corpus.

ALLEN, J., CONCURS.

LAWRENCE, J., DISSENTS WITH OPINION.

LAWRENCE, J.,

dissenting.

Keith Bruno (Bruno) appeals a September 11, 1998 order denying his petition for writ of habeas corpus. Bruno here challenges the revocation of his control release supervision. Our review is pursuant to Sheley v. Florida Parole Commission, 703 So.2d 1202 (Fla. 1st DCA 1997), approved, 720 So.2d 216 (Fla.1998). The applicable standard of review when an inmate appeals a decision of an administrative agency to the circuit court and then makes a secondary appeal to a district court is “whether the decision of the circuit court was a departure from the essential requirements of law resulting in a miscarriage of justice.” Sheley, 703 So.2d at 1206.

The facts of Bruno’s case shed light on the order under review. Bruno was convicted of manslaughter in Broward County in December 1989, in connection with the shotgun killing of one Randel Meade; he was sentenced to prison for twelve years. Bruno, due to prison overcrowding, was released to control release supervision in March 1992. He was arrested in October 1992, for DUI and possession of a controlled substance; he was adjudicated guilty of the former, adjudication was withheld on the latter, and he was sentenced to a year community control, with the special condition that he attend drug treatment at Turning Point for six months. Bruno was charged in October 1993 with changing his residence without permission and absconding from supervision. A hearing resulted in evidence that Bruno was informed that although he was released from the drug treatment program by court order as a condition of community control, the condition nevertheless was one of control release, despite the community control order. The parole commission thus found that Bruno violated control release, and issued an order to that effect on October 3, 1995. Bruno filed his habeas corpus petition in February 1998, in response to the 1995 order revoking control release.

The order denying Bruno’s habeas corpus petition states:

[T]he Court finds that the pleadings show that [Bruno] is challenging the [Florida Parole] Commission’s decision to revoke his control release supervision for changing his residence without permission by leaving the Turning Point Residential Program without first securing the permission of his control release officer. The Court finds that although completion of the program was deleted as a special condition of [Bruno’s] 1 year community control, upon expiration of his community control [Bruno] again was subject to conditions of his control release, one of which was completion of the program. When [Bruno] left the residential program without prior permission of his control release officer, he was properly charged with violating his control release.
[Bruno] has failed to demonstrate that the parole commission abused its discretion in relying on the administrative hearing examiner’s finding of fact to revoke his control release supervision.

Bruno argues that the revocation of his supervision was vindictive and that a judge released him from the drug-treatment requirement of community control that was the basis for revocation of supervision. Bruno further argues that he did not know he would have to complete drug-treatment as an agency condition despite the judge’s order, and argues that the agency imposed the requirement at the wrong time.

Bruno in other words argues what he knew, when he knew it, and when the agency did what it did. Bruno however had two prior opportunities to argue these factual matters; these matters were resolved against Bruno below. Bruno fails to show a departure from the essential requirements of law resulting in a miscarriage of justice. Bruno, in my view, thus fails to show entitlement to the extraordinary writ. Sheley. I would deny the petition.  