Present: All the Justices
CEDRIC VINCENT
v. Record No. 981998 OPINION BY JUSTICE ELIZABETH B. LACY
June 11, 1999
WARDEN OF THE DILLWYN
CORRECTIONAL CENTER, ET AL.
UPON A PETITION FOR A WRIT OF HABEAS CORPUS
In this petition for a writ of habeas corpus, we consider
whether a certificate of discharge from probation supervision
containing a prospective discharge date was superseded by a
subsequent parole board warrant for the arrest and detention
of the parolee pending a parole revocation hearing.
The sequence of events is as follows. On August 14,
1997, Cedric Vincent was released from the Virginia Department
of Corrections on mandatory parole, with a minimum parole
supervision expiration date of February 14, 1998. As part of
the conditions of parole, Vincent acknowledged that his
failure to obey all federal, state, and local laws and
ordinances would subject him to arrest and revocation of
parole.
On August 21, one week after his release on parole,
Vincent was arrested by the Fairfax County Police Department,
charged with distribution of cocaine, and incarcerated in the
Fairfax County Jail. In September 1997, while incarcerated
pending a hearing on the drug charge, Vincent was charged with
and convicted of simple assault for an incident that occurred
in the jail. On January 21, 1998, Vincent pled guilty to and
was convicted of the cocaine distribution charge.
As a result of Vincent's convictions for simple assault
and distribution of cocaine, his parole officer prepared a
"Major Violation Report" charging Vincent with violating the
conditions of his parole. Based on this report, the Virginia
Parole Board (the Parole Board) issued a Board warrant
commanding his arrest for violation of his mandatory release
and commanding his detention "subject to further action of
said Board." The Board warrant was issued on February 2, 1998
and served on Vincent at the Fairfax County Jail on February
11, 1998.
Approximately one month later, March 12, 1998, a Fairfax
County probation and parole officer gave Vincent an undated
"Certificate of Discharge." This undated certificate,
generated sometime in early January 1998 by the Virginia
Department of Corrections Information Systems, directed that
"final Discharge be entered effective 2/14/98." The same day,
March 12, the probation and parole officer filed a presentence
report in Vincent's pending sentencing proceeding for his
cocaine distribution conviction. In the presentence report
the officer stated that
[a]lthough a Parole Board warrant was issued for
the above violations, the Parole Board elected to
administratively discharge Mr. Vincent from
parole on February 14, 1998.
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On March 20, Vincent was sentenced on the cocaine
distribution charge to eight years in prison with six
years and six months suspended.
On May 13, 1998, a Parole Board hearing was held to
determine whether Vincent's parole should be revoked. The
Parole Examiner recommended that parole be revoked based on
Vincent's admission of guilt to the charge of cocaine
distribution and his conviction for simple assault. The
Virginia Parole Board revoked Vincent's parole by letter dated
May 22, 1998. The Parole Board denied Vincent's appeal and he
filed this petition for a writ of habeas corpus, pro se. We
ordered that counsel be appointed for Vincent and briefs be
submitted by the parties.
Vincent argues that his Certificate of Discharge became
effective prior to the revocation of his parole and that,
because he was no longer a parolee at the time of the
revocation, the Parole Board did not have jurisdiction to
revoke his parole. Therefore, he concludes, his detention
pursuant to the revocation is unlawful. To hold otherwise, he
asserts, is fundamentally unfair and violates his due process
rights. We disagree.
A parolee's obligation to comply with the terms of his
parole continues until the parolee is discharged from parole.
Until that time, a parolee is subject to revocation of his
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parole by the Parole Board. In this case, Vincent violated a
condition of the parole supervision prior to the effective
date of his discharge from parole. The Parole Board had the
authority to institute revocation proceedings based on
Vincent's violations up until the effective date of his
discharge. The Board exercised that authority by issuing the
Board warrant for Vincent's arrest and detention on February
2, 1998. See Code §§ 53.1-136, and -161.
Issuing a board warrant for a parolee's arrest and
detention for an alleged violation of parole conditions is
inconsistent with ordering discharge from parole. Therefore,
because the action of the Parole Board instituting parole
revocation proceedings in this case occurred subsequent to its
setting of a prospective discharge date, but before the
discharge date, the subsequent action operated to nullify the
Board's prior action. The fact that Vincent received the
Certificate of Discharge after he received the Board warrant
does not alter this conclusion. The operative event was the
initiation of action by the Parole Board, not the subsequent
receipt of notice of the Board's action.
Vincent's reliance on Cook v. Commonwealth, 211 Va. 290,
176 S.E.2d 815 (1970), and Vick v. Commonwealth, 201 Va. 474,
111 S.E.2d 824 (1960), is misplaced. Those cases involved
probation revocation pursuant to former Code § 53-275, the
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predecessor of Code § 19.2-306, which required that the
revocation itself be completed within a statutorily prescribed
period. The provisions of Title 53.1 regarding revocation of
parole do not contain such a time limitation other than the
requirement that an individual is a "parolee" at the time of
the revocation and has not been validly discharged from
parole. See Code § 53.1-136(3). Further, unlike the facts of
this case, the periods of probation or suspension in those
cases had ended before the trial court took action to revoke
probation.
Finally, Vincent argues that because he, the probation
and parole officer who filed the presentence report in the
drug distribution charge, and the trial court sentencing him
for the drug distribution charge all relied on the validity of
the Certificate of Discharge, it is fundamentally unfair to
allow the Parole Board to revoke his parole. * Vincent asserts
that the sentence he received reflected the trial court's
inclination to allow him to seek a drug treatment program and
he contends that had the trial court known of his true parole
*
Vincent argues that the Parole Board is bound by the
representations of the parole and probation officer as
reflected in the presentence report that the Board had
discharged Vincent from parole. He cites no cases in support
of this proposition, and, to the extent he is asserting a
claim of estoppel, we have said that estoppel does not apply
to the government in the discharge of its governmental
functions. Gwinn v. Alward, 235 Va. 616, 621, 369 S.E.2d 410,
413 (1988).
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status, it might have made adjustments to accommodate that
status while allowing entry into the drug treatment program.
This argument falls short of raising due process
considerations.
What accommodations the trial court might have made in
Vincent's sentence had it known that the Parole Board might
revoke Vincent's parole is speculative at best. Indeed,
Vincent may have received a shorter sentence in light of the
erroneous statement that he had been discharged from parole.
More importantly, Vincent's discharge from parole was within
the discretion of the Parole Board. Code § 53.1-136(4). A
parolee does not have a fundamental or liberty interest in a
discretionary final discharge from parole. See James v.
Robinson, 863 F.Supp. 275, 276 (E.D.Va. 1994), aff'd 45 F.3d
426 (4th Cir. 1994), citing Greenholtz v. Inmates of the
Nebraska Penal & Correctional Complex, 442 U.S. 1, 7 (1979).
For the above reasons, we conclude that the Parole Board
had jurisdiction to revoke the parole of Vincent on May 22,
1998 and, therefore, that his detention pursuant to the
revocation is lawful. Accordingly, we deny the petition for a
writ of habeas corpus.
Petition denied.
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