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Ray v. Carthen

Notice of a tentative parole month does not constitute premature consideration for parole in violation of O.C.G.A. § 42-9-45 b.

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In April 1997, appellee Donald B. Carthen was convicted of robbery by intimidation and was sentenced to serve ten years in prison. In September 1998, appellant State Board of Pardons and Paroles “the Board” served Carthen with a “Parole Decision Guideline—Notice of Tentative Action,” informing him that the circumstances of his crime warrant that he serve more than 50 percent of his sentence, which is greater than the suggested guidelines. Carthen was further advised that he had been assigned a tentative parole month of December 2004, but that he may be considered for parole as early as December 2003. Carthen filed the present mandamus action against the Board and its chairman, Walter Ray, asserting that under OCGA § 42-9-45 a he had a right to a parole hearing once he had served one-third of his sentence. Although the trial court determined that Carthen was not entitled to a hearing before the Board, it apparently concluded that Carthen had been ineligible for parole consideration at the time of the notice of tentative action because he had not yet served one-third of his sentence, and thus the notice was premature and ineffective. The trial court granted the petition for mandamus “to the extent that Carthen be given consideration for parole within 45 days” of the entry of its order. We granted discretionary review, and for the reasons which follow, we reverse.

1. The relevant statutes provide as follows:

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