Appeal from Montgomery Circuit Court. (CC-92-878).
Cobb, Judge. All the Judges concur.
The opinion of the court was delivered by: Cobb
This case was originally assigned to another Judge on the Alabama Court of Criminal Appeals. It was reassigned to Judge Cobb on January 17, 1995.
Joe Major, the appellant, filed a petition for a writ of certiorari with the Montgomery Circuit Court. In his petition, the appellant alleged that the Board of Pardons and Paroles improperly denied him parole. After holding a hearing on the petition, the trial court denied the petition.
The appellant contends that the Board's denial of parole was arbitrary and capricious because, he says, the Board considered erroneous information. The following colloquy occurred during the hearing on the petition:
"THE COURT: Well, I am speaking a little [prospectively], but where I see this going, Mr. Brown, [defense counsel] as I understood it, none of the things you have told me about, all his certificates and his awards that he has received while he has been incarcerated, none of that has been presented to the Board; is that right?
"MR. BROWN [defense counsel]: Yes, sir, that's correct.
"THE COURT: In addition to the memo here that indicated some of these cases may have either been nol-prossed or no-billed for whatever reason, the Board has not had the ability to even review this memorandum? They have just had records of arrests that have been reported, I presume; is that correct?
"MR. BROWN: That's correct.
"THE COURT: Until this memo was generated and it was reviewed?
"MR. DAVIS [counsel for Board of Pardons and Paroles]: Each of these charges was listed in the pre-sentence investigation, but the way it was listed, it was rather ambiguous in my eyes as to how many separate incidents there were, as to whether each one of these charges was a separate incident. As it turns out in several cases, two or three charges came out of a single incident.
"THE COURT: It certainly appears as though there is some information that the parole board would consider significant in deciding whether or not Mr. Major would be entitled to parole. But I don't know that the posture in which you have it right now -- if this information has not been presented to the Board, I don't know that I can -- I certainly think I am restrained in ruling that they have acted arbitrarily when they may not have had the benefit of that information for whatever reason. The point I am trying to get to is this, and I want to ask Mr. Davis if he can do it. Is there a way this can be ...