Osbourne v. BoP&P

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Osbourne v. BoP&P, Case No. 20000843-CA, Filed March 15, 2001 IN THE UTAH COURT OF APPEALS

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Robert Eugene Osbourne,
Petitioner and Appellant,

v.

State Board of Pardons and Parole,
Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000843-CA

F I L E D
March 15, 2001 2001 UT App 86 -----

Third District, Salt Lake Department
The Honorable Timothy R. Hanson

Attorney:
Robert Eugene Osbourne, Draper, Appellant Pro Se

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Before Judges Jackson, Bench, and Davis.

PER CURIAM:

Appellant challenges the trial court's dismissal of his petition for extraordinary relief. The case is before this court on its own motion for summary disposition.

We agree with the trial court that the claims raised in the petition were frivolous. Statutory and case law give the board broad discretion to award and revoke parole. See Utah Code Ann. § 76-3-202(1) (1999) ("Any person who violates the terms of his parole . . . shall at the discretion of the Board . . . be recommitted to prison"); §§ 77-27-5, -9 (1999); Labrum v. Utah Bd. of Pardons, 870 P.2d 902, 906 (Utah 1993) (board has absolute discretion in parole decisions); Foote v. Utah Bd. of Pardons, 808 P.2d 734, 735 (Utah 1991) (board has "unfettered" discretion to determine actual length of incarceration). Padilla v. Utah Bd. of Pardons, 947 P.2d 664 (Utah 1997), rejected the contention that the board's exercise of its power to determine the length of an inmate's incarceration violates the doctrine of separation of powers, holding that the respective powers of the courts and the parole board are "separate and distinct powers, neither of which invades the province of the other." Id. at 668-69. This reasoning applies to the board's power to order that a parolee be retaken into custody as well as its power to grant and revoke parole. Appellant was already subject to the jurisdiction of the parole board, and the board's issuance of a warrant authorizing his apprehension for a parole violation did not encroach upon the power of the judiciary to issue a warrant for his arrest in a criminal prosecution.

Accordingly, we summarily affirm the trial court's dismissal of the petition.
 
 
 

______________________________
Norman H. Jackson,
Associate Presiding Judge
 
 
 

______________________________
Russell W. Bench, Judge
 
 
 
 

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James Z. Davis, Judge