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Absence of Parole Revocation Administrative Appeal Process Entitles Prisoner to Trial Court Determination of Custody Credits

by John E. Dannenberg

The California Court of Appeal, Sixth District, held that when a parolee both violated parole and committed a new offense, and disputed his parole revocation hearing findings but had no administrative appeals process available to challenge them, he was entitled to have the sentencing court immediately hear his revocation dispute as part of the determination of custody credits in his sentencing hearing.

State parolee Morris Foster was arrested for and convicted of drug charges, and sentenced to three years. He also was charged with violating parole, and after a Morrissey hearing, was found guilty. However, he disputed the fact-finding during the hearing, where he alleged he could not defend himself due to heavy Vicodin medication he was taking for pain.

At issue in the trial court was how to calculate his pre-sentence county jail credits. If the parole violation findings were defective, he would gain credits. The trial judge, however, ruled that any challenge to the Morrissey hearing findings must first be taken up in an administrative appeal; hence, he could not grant Foster the increased credits.

The Court of Appeal disagreed. First, it found that the California parole authority had repealed its appeals process three months before Foster?s arrest. In the absence of any appeals process, Foster could scarcely be required to exhaust such ?remedies.? The state countered that Foster?s remedy lay in a petition for writ of habeas corpus. The appellate court found that while that was one possible remedy, it seemed a waste of judicial resources to sentence a prisoner in a court that well knew of the Morrissey challenge, require him to address another court on habeas corpus, and then return to the sentencing court for relief.

Accordingly, the Court of Appeal reversed and remanded to the sentencing court solely to reexamine Foster?s claimed entitlement to favorable pre-sentencing custody credits, including a review of his disputed Morrissey hearing findings. See: People v. Foster, 46 Cal.Rptr.3d 861 (Cal.App. 6 Dist. 2006), review denied. Note that this case was ordered not to be published.

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Related legal case

People v. Foster