RONALD MAHER, APPELLANT,
v.
FLORIDA PAROLE COMMISSION, APPELLEE
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The Florida Parole Commission's determination that an inmate was ineligible for control release based on a battery conviction involving a sex act was reversed because the record contained no evidence that a sex act occurred during the battery offense.
An inmate cannot be disqualified from control release under section 947.146(4)(d) based on a battery conviction unless the record affirmatively shows that a sex act was attempted or completed during commission of that offense.
[1] A parole disqualification statute requiring a sex act to have occurred during a battery offense cannot be applied based on suspicion or unrelated charges; the record must…
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Court's analysis of the record regarding whether the battery conviction involved a sex act
Appellant Maher was serving a five-year sentence for burglary, grand theft, and uttering. He had a prior battery conviction, and the Florida Parole Co…
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PER CURIAM.
Appellant, serving a five-year sentence for burglary, grand theft and uttering, challenges the trial court’s denial of his petition for writ of mandamus, by which appellant protested the Florida Parole Commission’s determination that he was ineligible for control release. Appellant’s ineligibility was based upon section 947.146(4)(d), Florida Statutes (Supp.1992), which disqualifies any inmate with a battery conviction where “a sex act was attempted or completed during commission of such offense.” The appellant has a battery conviction, and the Commission relied upon a police report to conclude that the offense involved a sex act. We find no support in the record for such a conclusion.
As we read the police report and the other documents pertaining to the battery conviction, it is clear that no sex act was involved in appellant’s battery offense. Although the arrest report indicates that appellant was suspected of committing a lewd act upon a child in addition to the battery offense, there is no indication that formal charges were ever brought on the lewd act. More importantly, it is clear that the offenses were not connected. In short, the Commission should not have declared appellant ineligible based upon his prior battery conviction.
Accordingly, the trial court’s order is REVERSED and the case is REMANDED with directions to grant the requested relief.
ERVIN, MINER and MICKLE, JJ., concur.