JACK STERNS, PETITIONER,
v.
LOUIE L. WAINWRIGHT, RESPONDENT
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Jack Sterns challenged his imprisonment, claiming he had served his sentence. The Florida Supreme Court held that when Sterns's original robbery sentence was vacated and a new sentence imposed, he was entitled to credit for time served under the original sentence, but not for the intervening escape sentence, as the escape sentence did not begin to run until the original sentence was voided.
When the original robbery sentence was vacated, it was voided ab initio, and the escape sentence became activated as of June 21, 1960. Sterns should be credited with time served under the original 25-year sentence but not under the 15-month escape sentence, because the escape sentence did not actually run (was not being served) while the original sentence was in effect. The vacating of the escape sentence in 1965 did not restore credit for time previously served under it.
“So long as any such former sentence was in effect the escape sentence, was not being served.”
Establishes that the escape sentence did not run while the original sentence remained valid
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Join FLexlaw to unlock all legal intelligenceSterns was sentenced to 25 years for robbery in January 1957. In June 1960, he was sentenced to an additional 15 months for escape. The original robbe…
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REVISED OPINION ON REHEARING.
Our opinion of May 4, 1966 is withdrawn and this revised opinion is substituted in lieu thereof. As addressed to this revised opinion the petition for rehearing is denied.
By application for a writ of habeas corpus petitioner Sterns seeks release from the State Prison.
We must decide whether petitioner’s sentence has been served, thereby justifying his release.
A chronology of events which produced the problem is as follows:
January 3, 1957 — Sarasota County Circuit Court sentenced Sterns to 25 years for robbery.
June 21, 1960 — -Lee County Circuit Court sentenced Sterns to 15 months for escape. This was a consecutive sentence.
September 26, 1963 — Sarasota sentence vacated and new trial ordered pursuant to Rule 1 Motion.
March 31, 1964 — At retrial on robbery charge a new sentence of 18 years was imposed, but with “credit on this sentence for the time served and unfor-feited gain time earned by you while you were imprisoned under the state prison sentence for 25 years which was imposed upon you by this court * * * ” The Division of Corrections was ordered to figure the credit.
July 20, 1965 — Lee County escape sentence was vacated and a new trial granted. Before another trial the charge was nolle prossed.
The respondent contends that when the Sarasota County sentence was vacated on September 26, 1963, it was voided ab initio. He then claims that the only valid sentence which Sterns could have served on and after June 21, 1960, was the 15 month Lee County escape sentence which was imposed on that date. He finally concludes that because of this, when the Lee County escape sentence was “vacated” on July 20, 1965, the Court was without power to enter the order because service of this sentence had already been completed.
The respondent insists that the 15 months served after June 21, 1960, should not be credited as time served under the original 25 year sentence. Hence, he says it should not be allowed as a credit against the 18 year sentence imposed following the Sarasota County retrial. We have not been informed of the exact amount of credit for time served which has been allowed against the 18 year sentence. Respondent does advise that a tentative release date has been set for September 8, 1967. The respondent insists that the judge was wrong in setting aside the escape sentence, which he claims had already expired.
By virtue of Section 944.40, Florida Statutes, F.S.A., the escape sentence of June 21, 1960, was “in addition to any former sentence imposed upon” the escapee. Tirko v. Wainwright, Fla., 178 So.2d 697. So long as any such former sentence was in effect the escape sentence, was not being served.
However, under Helton v. Mayo, 153 Fla. 616, 15 So.2d 416, when the Sarasota sentence was vacated, it was voided from its inception and the Lee County 15 month sentence then was activated as of the date it was prescribed, June 21, 1960. Ex parte Sams, 67 So.2d 657. Once the service of the escape sentence was begun it would not be interrupted in the absence of some specific court order. Hence, under the second robbery sentence prescribed on March 31, 1964, the petitioner should be *862■credited with time spent in prison under the ■original 25 year sentence but he should not "be credited with time served under the 15 month sentence which began to run June .21, 1960.
When the escape sentence was “vacated” •on July 20, 1965, that sentence had long •since been served. The vacating order did not restore credit for the time served under the vacated sentence.
The petitioner is remanded to custody •subject to serving the sentence as construed •by this opinion.
It is so ordered.
THOMAS, ROBERTS, O’CONNELL and CALDWELL, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Adams v. Louie L. Wainwright, 275 So. 2d 235 (Fla. 1973)…ention of petitioner to begin serving his six months county jail sentence immediately. Nonetheless, those 82 days must be credited to petitioner’s original state prison sentence which cannot be thus interrupted or deferred. See Sterns v. Wainwright, 195 So. 2d 860 (Fla.1967), wherein we said: “So long as any . . . former sentence was in effect the escape sentence was not being served.” He was therefore, at that point after his escape trial, serving on his original sentence, to which such time must be credited…
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Jethro White v. State, 240 So. 2d 150 (Fla. 1970)…nt of Corrections for escape without receiving credit for time served during the summer on the earlier escape sentence. F.S. section 944.40, F.S.A., clearly states that escape sentences must run consecutively. And in Sterns v. Wainwright, Fla.1967, 195 So. 2d 860, this Court interpreted that statute to mean that “so long as any * * * former sentence was in effect the escape sentence was not being served.” At the termination of the breaking and entering sentence, therefore, Petitioner should serve a one-year…
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Loving v. State, 379 So. 2d 968 (Fla. 1st DCA 1979)…. The trial court’s only error was to make May 28, 1969 the effective date of the sentence. When Judge Scott invalidated the 1969 sentence, it was void from the beginning, Helton v. Mayo, 153 Fla. 616, 15 So. 2d 416 (Fla.1943); Sterns v. Wainwright, 195 So. 2d 860 (Fla.1967), and the new sentence runs from the date actually imposed, with credit given for any time served under the invalid sentence. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); Simmons v. State, 217 So. 2d 343 (F…
Authorities Cited
- Helton v. Mayo, 153 Fla. 616 (Fla. 1943)
- Ex parte Sams, 67 So. 2d 657 (Fla. 1953)
- Tirko v. Louie L. Wainwright, 178 So. 2d 697 (Fla. 1965)