IN RE JOHNNIE ALLEN, PETITIONER
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A conviction for escape is a substantive offense, and the punishment for escape is separate from the punishment for the offense for which the prisoner was confined.
Petitioner was convicted of escape while serving a sentence for a conviction that was later reversed. He argued he should receive credit for time serv…
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Plaving considered the petition of Johnnie Allen, an inmate of the state penitentiary (Reg. No. E-002340), for a writ of habeas corpus, the same must be and it is hereby denied on the authority of State ex rel. Wilson v. Culver (Fla.1959), 110 So.2d 674.
It appears that the petitioner was convicted of the offense of escape, as denounced by § 944.40, Florida Statutes, F.S. A. The escape occurred while he was serving a sentence imposed pursuant to a conviction of assault with intent to commit murder, which conviction was reversed by this court on November 29, 1960. Allen v. State (Fla.App.1960), 124 So.2d 741. The contention of the applicant is that since he was serving an illegal sentence at the time he committed the offense of escape, he is entitled to credit against the sentence imposed for the length of time he served under the unlawful conviction. The answer to that is that appeal rather than arbitrarily escaping lawful detention is the legal avenue for relief.
We recognize, of course, that the circumstances in which the applicant finds himself may present equitable considerations to the Florida Parole Commission or to the Pardon Board, which agencies have special powers over matters of this kind. Those powers, however, are not enjoyed by *641the courts. As stated by the above cited case:
“ * * * under our statute the crime of escape is a substantive offense, and the punishment therefor is not merely incidental to the punishment for the offense for which the prisoner was confined at the time of his escape. Even though the indictment under which he was confined .at the time of his escape is subsequently dismissed * * * or the conviction under which he was confined at the time of his escape is subsequently reversed or set aside on appeal * * * the prisoner must nevertheless bear the penalty for the separate and distinct offense of escape.”
Petition denied.
CARROLL, DONALD K., Chief Judge, and STURGIS and WIGGINTON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Cited By
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Garrett v. State, 193 So. 2d 232 (Fla. 2d DCA 1966)…PER CURIAM. Affirmed. See: Section 944.40, Fla. Stats., F.S.A.; State ex rel. Wilson v. Culver, Fla.1959, 110 So. 2d 674; In Re Allen, Fla.App.1962, 140 So. 2d 640. ALLEN, C. J., and SHANNON and LILES, JJ. concur.…
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Montford v. Louie L. Wainwright, 162 So. 2d 663 (Fla. 1964)…ng for the same crime. We must agree with respondent’s contentions The void and valid judgments were for different and wholly unrelated offenses. Time served under the first sentence is not, therefore, to be credited against the other. In Re Allen, 140 So. 2d 640 (Fla.App.1st 1962). Petitioner cannot have commenced serving his 12-year sentence prior to its imposition on July 31, 1961. Time he served prior to that date on the void sentence will not go to reduce the time he must serve under his present senten…
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Blackmon v. State, 253 So. 2d 272 (Fla. 2d DCA 1971)…Blackmon which he now contends he should not have been required to serve, specifically 17 months served between the time of the sentence back in October, 1960, and the vacating of that sentence the early part of 1964. See In re Allen, Fla.App.1962, 140 So. 2d 640, and Jackson v. State, Fla.App.1965, 172 So. 2d 7. Of course, whatever consideration in this respect might be given by any sentencing Court hereafter, if the occasion should so arise, would be entirely up to that Court. The same is true as to any co…
Authorities Cited
- State ex rel. David L. Wilson v. Culver, 110 So. 2d 674 (Fla. 1959)
- Allen v. State, 124 So. 2d 741 (Fla. 1st DCA 1960)