THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Friday, May 12, 1995 TAG: 9505120450
SECTION: LOCAL PAGE: B3 EDITION: FINAL
SOURCE: BY MIKE MATHER, STAFF WRITER
DATELINE: VIRGINIA BEACH LENGTH: Medium: 66 lines
A convicted murderer rearrested after he was mistakenly paroled will stay behind bars after a judge ruled the Virginia Parole Board had the authority to correct the error.
The five-page opinion from Circuit Court Judge Frederick B. Lowe, received by attorneys Thursday, means James Michael Wear will remain incarcerated at least pending the outcome of a hearing to determine if he is still eligible for parole.
``We obviously plan to appeal the case because we feel the parole board doesn't have any authority outside the statute to revoke a parole based upon an administrative error,'' said Wear's attorney, James O. Broccoletti. ``We don't think it was an error, and we certainly do plan to pursue whatever appeal rights we have to.''
On March 1, the parole board released Wear without receiving input from Wes Benica, husband of the slain Julie Benica. Lowe ruled that Wear could not be paroled without input from the Benica family.
Julie Benica was the motel clerk Wear and three others were convicted of robbing and killing March 13, 1990. Wear was 17 when the crime occurred.
Wear had served four years of a 27-year sentence at the Brunswick Correctional Center before he was released.
He had one day of freedom before parole board chairman John B. Metzger III discovered the mistake and ordered police to rearrest Wear.
Wear spent the day at his mother's house. He has been in the city jail since March 2.
Wes Benica, reached by phone, declined to comment.
Broccoletti argued at a hearing last month that the board didn't have the authority to rearrest Wear because his client didn't violate the conditions of his parole. But because all of the requirements for parole were not met before Wear's release, Lowe ruled on Tuesday that the state had the authority to jail Wear again.
Included in those requirements are evaluations of the prisoner's history, physical and mental condition, character, conduct and attitude while incarcerated. The board must also notify the victim's family before the parole hearing if they ask to be informed of such hearings.
The family can then make a statement about how the prisoner's parole would affect them.
``The statute is very specific in defining the conditions that must be satisfied prior to the release of a potential parolee,'' Lowe wrote.
In this case, Wes Benica had made an appointment to give a statement, but, because of an administrative error, Wear was released before that happened.
Wear apparently cleared all other evaluations.
``Under these circumstances, there is inherent in the board the authority to take whatever steps within its power which are necessary to ensure that the parolee's release was in accordance with the statutes,'' Lowe wrote. ``This is true especially given that the victim input is an important facet of the determination. . . .
``The court finds . . . that the board had the administrative authority, in reliance upon its regulations, to detain (Wear),'' Lowe concluded. ILLUSTRATION: Photo
Julie Benica was a motel clerk who was robbed and killed on March
13, 1990.
KEYWORDS: MURDER ARREST RELEASE by CNB