THE VIRGINIAN-PILOT 
              Copyright (c) 1995, Landmark Communications, Inc.

DATE: Saturday, March 18, 1995               TAG: 9503180203
SECTION: LOCAL                    PAGE: B3   EDITION: FINAL 
SOURCE: BY LAURA LAFAY, STAFF WRITER 
DATELINE: VIRGINIA BEACH                     LENGTH: Medium:   52 lines

PAROLED, RE-ARRESTED KILLER ASKS FOR FREEDOM BOARD HAD NO RIGHT TO RETURN CONVICT TO JAIL, LAWYER SAYS.

A convicted murderer who was paroled from prison, then re-arrested a day later because the Parole Board did not tell his victim's family of his release, petitioned Circuit Court Friday to get out of jail.

James Michael Wear had served four years of a 27-year sentence when he was paroled earlier this month. Less than 32 hours later, on March 2, Virginia Beach police surrounded Wear's mother's house and re-arrested him, at the Parole Board's direction. Wear had been hooked up to an electronic monitoring device

Parole Board Chairman John Metzger III has said Wear was released without the input of his victim's family because of a ``staff blunder'' and a computer error.

According to Metzger, the board cannot, by law, release a prisoner without giving the victim's family a chance to be heard.

Wear's attorney, James Broccoletti, said Metzger is wrong.

``The statute says they are to notify the victims,'' Broccoletti said. ``The statute does not say that their failure to do so causes (Wear) to violate parole or deems him unsuitable to be paroled.''

The Parole Board had no authority to re-arrest Wear because he did not violate the terms of his parole, Broccoletti said.

In his petition, Wear claims that once he was paroled, he had ``due process rights under the Virginia and Federal Constitution to his continued liberty. . parole and released the petitioner.''

Wear also has asked the court for an injunction to prevent the Parole Board from holding a hearing April 3 to determine his suitability for parole.

``They're not entitled to have a hearing,'' Broccoletti said. ``I don't want the Parole Board to take any further action in this case. They have no reason to have a hearing and they have no reason to incarcerate this man further.''

Wear, now 22, was 17 when he drove the getaway car for three friends after they robbed the Ocean Island Motel and murdered Julie Benica, a 28-year-old clerk.

Wear pleaded guilty to first-degree murder and robbery in August 1990 and was sent to the Brunswick Correctional Center in Lawrenceville in 1991. He became eligible for parole this month.

A week after Wear's re-arrest, Benica's husband, Wes, visited Metzger at the Parole Board's office in Richmond. by CNB