JOHN A. DEESE, PETITIONER,
v.
H. G. COCHRAN, JR., DIRECTOR, DIVISION OF CORRECTIONS, RESPONDENT
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John Deese challenges his consecutive prison sentences by habeas corpus, claiming time served on parole should credit toward his sentence or satisfy both convictions. The Florida Supreme Court holds that parole time cannot be credited against a sentence under statutory law, and that consecutive sentences must be served in the order imposed until each is satisfied.
Time served on parole cannot be credited against a sentence because Florida Statutes Section 947.21 expressly provides that time on parole "shall in such event, in any manner diminish the time of such sentence." Sentences must be applied in the order imposed until each is satisfied; because Deese had not completed his first sentence, his second sentence has not yet begun to run.
“no part of the time [a convict] may have been on parole shall in such event, in any manner diminish the time of such sentence”
This statutory provision is the basis for the court's holding that parole time cannot be credited against the original sentence imposed.
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Join FLexlaw to unlock all legal intelligenceDeese was convicted in Brevard County Circuit Court on March 10, 1951, and sentenced to four years in prison. Six days later, he was convicted in Oran…
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From the allegations of the petition for writ of habeas corpus and the return filed in response to the writ this court issued, we get the salient facts.
The petitioner was convicted in the Circuit Court of Brevard County, Florida, and sentenced 10 March 1951 to four years in the state penitentiary. On 28 March 1951, he was convicted in the Criminal Court of Record of Orange County and sentenced to six months in the penitentiary. Inasmuch as the offenses were not charged in the same indictment or information and there was no direction on the part of the Criminal Court of Record of Orange County that the sentences be served concurrently, the petitioner faced consecutive sentences totalling four years and six months. Sec. 921.16, Florida Statutes 1949, F.S.A.
On 30 April 1952 when the petitioner had been in prison slightly longer than one year, he escaped, and he was not again incarcerated until 4 February 1958. After remaining in prison until 30 June 1959, he was paroled and he remained at liberty until 25 April 1961 when his parole was revoked, effective 4 April of that year, for violations of the parole terms committed the preceding January.
At the time the petitioner escaped he had served one year, one month and 20 days, and between the time of his recapture and his parole he had been in prison one year, four months and 26 days, so when his parole was granted, and for that matter when it was revoked, he had actually served two years, six months and 16 days of the original sentence imposed by the Circuit Court of Brevard County leaving unsatisfied one year, five months and 14 days of that term.
The petitioner contends that the remainder of the sentence was served while he was released on parole but this is not a sound position because under Sec. 947.21, Florida Statutes 1949, F.S.A. the petitioner was subject to arrest and return to prison to finish serving the term for which he was originally sentenced, and in the order of the Parole Commission revoking the parole, it was required that he remain in prison “not to exceed his sentence * * Moreover, it is expressly provided in that law that “no part of the time [a convict] may have been on parole shall in such event, in any manner diminish the time of such sentence.”
In view of the provisions of the applicable statute the petitioner, although entitled to a credit of two years, six months and 16 days, the time actually served, could *431not be credited with the further time of one year, nine months and four days, the period he was out on parole, so that, as he contends, the first sentence would be satisfied and he would have been entitled to a credit of three months and 20 days on the Orange County sentence, nor can there be added to these periods the time served since revocation of parole, to work a service of both sentences.
To recapitulate, when the petitioner’s parole was revoked, effective 4 April 1961, he had served two years, six months and 16 days and had then to serve one year, five months and 14 days of the original four-year Brevard County sentence. This period has been reduced by 12 months, computed to 4 April 1962, so the petitioner will have on that date five months and 14 days yet to serve in order to complete the first sentence, and he will not until then commence service of the second, or Orange County, sentence.
To our mind, this is simply a case of determining debits, in the form of sentences, and credits, in the form of time served, and once the remainder is determined, applying it to sentences in the order they were imposed. If there were a surplus of service over the term of the first sentence, it would be applied to the succeeding sentence; as this was not the case, the first sentence has not been satisfied, and service of the second has not begun.
This opinion is being substituted for an initial one filed 4 October 1961.
The writ of habeas corpus is discharged.
ROBERTS, C. J., and TERRELL, DREW and HOBSON (ret.), JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Coleman v. Louie L. Wainwright, 323 So. 2d 581 (Fla. 1975)…fender whose parole is revoked may, at the discretion of the commission, be credited with any portion of the time he has satisfactorily served on parole.” . McGinnis v. Royster, 410 U.S. 263, 93 S.Ct. 1055, 35 L.Ed.2d 282 (1973); Deese v. Cochran, 139 So. 2d 429 (Fla.1962).…
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Gibbs v. Louie L. Wainwright, 302 So. 2d 175 (Fla. 2d DCA 1974)…e of such [*177] sentence.1 The courts of this state have consistently held that a parolee whose parole had been revoked was not entitled to credit for time when he was on parole. Mayo v. Lukers, Fla.1951, 53 So. 2d 916; Deese v. Cochran, Fla. 1962, 139 So. 2d 429; Porter v. State, Fla.App.1st, 1968, 212 So. 2d 828. See also Starnes v. Connett, 5th Cir. 1972, 464 F. 2d 524, which dealt with an analogous statute. The courts of Florida have held that gain time is forfeited by operation of the provisions of § 9…
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Simmons v. State, 217 So. 2d 343 (Fla. 2d DCA 1969)…omputed from the date of the parole order without gain time allowance during the parole period. This construction is in line with the weight of authority from other jurisdictions having similar statutes. * * * ” See also Deese v. Cochran, Fla.1962, 139 So. 2d 429; Dear v. Mayo, 1943, 153 Fla. 164, 14 So. 2d 267. The appellant seeks credit for any gain time to which he was entitled or would have been entitled. The rule is set down in Mayo v. Lukers, supra: “Section 954.06, F.S.A., prescribes the method or r…
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