403 F2d 33 Powell v. L Wainwright

403 F.2d 33

Willie POWELL, Appellant,
Louie L. WAINWRIGHT, Director, Division of Corrections, State of Florida, Appellee.

No. 26156.

United States Court of Appeals Fifth Circuit.

November 13, 1968.

Michael Meltsner, New York City, Tobias Simon, Miami, Fla., for appellant.

Earl Faircloth, Atty. Gen. of Florida, Raymond L. Marky, Asst. Atty. Gen., Tallahassee, Fla., Robert R. Crittenden, Asst. Atty. Gen., Lakeland, Fla., for appellee.

Before DYER and SIMPSON, Circuit Judges, and CABOT, District Judge.


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The appellant, Willie Powell, in proceedings in no way attacked here, was convicted by a Florida court in 1949 of rape, and was sentenced to life imprisonment. He was paroled in April, 1966, by the Florida Probation and Parole Commission. While on parole he was indicted and tried for another alleged rape, occurring February 1, 1967. He was acquitted by the jury at a trial for this offense, concluded April 7, 1967.


A parole violator's warrant was issued for him on February 2, 1967, with hearing thereon held June 19, 1967, after the conclusion of the rape trial. His parole was revoked as a result of that hearing, not for the rape offense, but for the alleged assault and beating of one Byron Lucia, the boyfriend of the alleged rape victim.1 This assault, if it occurred at all, occurred as a part of the circumstances surrounding the alleged rape.


We have considered the claims advanced to the district court and to this Court by the appellant including double jeopardy, violation of the appellant's privilege against self-incrimination by the questioning of him by his parole officer at the time of arrest, and the denial of a due process hearing before the Florida Probation and Parole Commission. In this connection we have carefully studied the record before the district court. No prejudicial error is made to appear as to any of the contentions raised. The judgment of the district court is





The Florida Probation and Parole Commission's findings of August 3, 1967 were that

"from the testimony given by Marianne Walker [the raped girl] in person before said Commission on June 19, 1967, that on February 1, 1967, in Palm Beach County, Florida, that the said Willie Powell did violate the terms and conditions of his parole by unlawfully and without provocation beating, bruising, wounding and ill-treating one Byron Lucia [the boyfriend]." [R. 49]