DAVID LEIGH KING V PAROLE BOARDAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
DAVID LEIGH KING,
July 24, 1998
Lenawee Circuit Court
LC No. 96-007218 AW
Before: Doctoroff, P.J., and Fitzgerald and Talbot, JJ.
Petitioner appeals as of right the trial court order granting respondent’s motion for summary
disposition pursuant to MCR 2.116(C)(8). We affirm.
While on parole, petitioner was arrested and pleaded nolo contendere to second-degree
criminal sexual conduct, MCL 750.520c; MSA 28.788(3). He was sentenced to a one-year delayed
sentence that was to be served concurrently with a thirty-three month federal sentence. As a result of
the CSC charges, a parole detainer was filed against petitioner and he was served with notice of five
parole violations. Petitioner was incarcerated in a federal correctional facility in Pennsylvania, and upon
release was made available for return to MDOC for the purpose of pursuing his parole violations.
Petitioner first argues that respondent lost jurisdiction over him when it failed to hold a parole
revocation hearing within forty-five days of when he was available for return to a state correctional
facility pursuant to MCL 791.240a; MSA 28.2310(1). We need not determine when petitioner was
available for return to a state correctional facility because plaintiff has had the parole violation hearing
required by statute. In In re Lane, 2 Mich App 140; 138 NW2d 541 (1965),1 this Court held that the
parole board’s failure to comply with the time requirement for a parole revocation hearing does not
constitute a bar to continued proceedings. Rather, a petitioner has a remedy by way of mandamus to
require the hearing. Thus, if the hearing is not timely held, a prisoner can force the hearing to be held
and in the meantime is entitled to be released. See Callison v Dep’t of Corrections, 56 Mich App
260, 265-266; 223 NW2d 738 (1974). Here, petitioner has had his hearing and violation of the statute
is not a ground for release.
Petitioner also argues that the parole board’s failure to provide him with a written statement of
findings of fact and the reasons for revoking his parole within sixty days of his availability to return to a
state correctional facility pursuant to MCL 791.240a(6); MSA 28.2310(1) entitles him to release from
prison. After review of the record, we agree that petitioner’s statutory right to receive a written report
within 60 days was violated. However, the petitioner has received his hearing and has been provided a
written statement of the findings of fact. Because a parole revocation proceeding can continue even if it
is not timely, it follows that a late decision will not void the proceedings. Accordingly, the court did not
err in granting respondent’s motion for summary disposition pursuant to MCR 2.116(C)(8).
/s/ Martin M. Doctoroff
/s/ E. Thomas Fitzgerald
/s/ Michael J. Talbot
The Supreme Court apparently agrees with the underlying reasoning in Lane. The Supreme court first
denied leave in Lane on December 20, 1965. 377 Mich 693. The Court then entered an order
granting habeas corpus on January 11, 1966. 377 Mich 695. Finally, the Court entered another order
denying leave on February 11, 1966. 377 Mich 700.