Draper v. State BoP

David L. Draper,
Kent Madsen, et al.,
Petitioners and Appellants,

v.

Utah State Board
of Pardons and Parole,
Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000088-CA

F I L E D
June 8, 2000 2000 UT App 174 -----

Third District, Salt Lake Department
The Honorable Anne M. Stirba

Attorneys:
David L. Draper and Kent D. Madsen, Draper,
Appellants Pro Se -----

Before Judges Bench, Davis, and Orme.

PER CURIAM:

Appellants challenge the legality of their sentences arguing that the Board of Pardons & Parole improperly required them to serve longer sentences than imposed in their criminal proceedings. As the trial court determined, this argument has been previously resolved by Utah law. By statute, the Board is given authority to determine by majority decision when and under what conditions . . . persons committed to serve at . . . correctional facilities . . . may be released upon parole, pardoned, restitution ordered, or have their fines, forfeitures, or restitution remitted, or their sentences commuted or terminated. Utah Code Ann. § 77-27-7 (1999). As the Utah Supreme Court said in Padilla v. Utah Board of Pardons and Parole, 947 P.2d 664 (Utah 1997), "while the courts have the power to sentence, the Board has been given the power to pardon and parole. These are two separate and distinct powers, neither of which invades the province of the other." Id. at 669. The Padilla court went on to conclude that the Board did not exercise a sentencing power, but rather, merely exercises its constitutional authority to commute or terminate an indeterminate sentence that, but for the Board's discretion, would run until the maximum period is reached. Therefore, we hold that the Board's exercise of its parole power does not violate the separation of powers doctrine of article V, section 1 of the Utah Constitution. Id. Based on Padilla and section 77-27-5, appellants' arguments fail. Accordingly, we affirm the trial court's dismissal of the petition as frivolous.
 
 
 
 
 

______________________________
Russell W. Bench, Judge
 
 
 
 
 

______________________________
James Z. Davis, Judge
 
 
 
 
 

______________________________
Gregory K. Orme, Judge