Opinion
February 5, 1952.
Appeal from the Circuit Court for Alachua County, John A.H. Murphree, J.
Richard W. Ervin, Atty. Gen. and Reeves Bowen, Asst. Atty. Gen., for appellant.
Ray Sandstrom, Lakeland, for appellee.
This is an appeal from a final judgment on a petition for habeas corpus filed in the Circuit Court of Union County.
On April 24, 1931 the appellee was convicted of a felony and sentenced to serve 15 years. On December 9, 1937, he was released on a conditional pardon, which provided that if it should be revoked because of a breach of its conditions, "* * * he shall thereafter suffer such part of such original sentence of said court as has not already been suffered by him at the date of this pardon". While this conditional pardon was in effect, the appellee, on December 19, 1947, was convicted of another crime and sentenced to serve a 5-year term, and immediately entered prison and began serving said sentence. On the 6th day of January, 1948, and after the appellee had begun serving his new sentence, the Pardon Board revoked the conditional pardon heretofore mentioned, and said order contained the following language: "* * * does hereby order that he shall be required to serve such part of the sentence of the court, wherein he was convicted, which he had not already served at the date of said pardon, the same as if no pardon had been granted". (Italics supplied.)
It was contended in the habeas corpus proceeding in the Circuit Court that the two sentences ran concurrently after the revocation of the conditional pardon, and that the appellee was entitled to gain time served on the 15-year sentence prior to the granting of said conditional pardon, and that the time served on said sentence before the conditional pardon was granted, and also the time served on the original sentence after the conditional pardon was revoked, plus the gain time completed the service of the 15-year sentence. Also, it was contended that the 5-year sentence, plus the gain time on that sentence, had completed the service of the same and the appellee was entitled to be discharged.
The appellant in due course filed an answer in which he claimed that the two sentences did not run concurrently, but ran consecutively, and that the appellee was not entitled to any gain time on his 15-year sentence prior to his release, or otherwise, and that he was not entitled to be discharged because the sentence had not been completed.
On July 16, 1951, the Circuit Judge entered his final judgment agreeing with the contentions of the appellee and discharging him from the said two sentences and ordering him released from the appellant's custody upon making bail for his appearance to answer and abide by the judgment of this Court on appeal. The final judgment granted leave to the appellant to appeal therefrom.
Two questions are presented: (1) "Did the two sentences run concurrently?", and (2) "Was the appellee entitled to gain time on account of the time served by him prior to his release on the conditional pardon?".
At the time the appellee was convicted and sentenced to 15 years, on April 24, 1931, Section 921.16, F.S.A., which provides for consecutive sentences unless the Court expressly directs otherwise, was not in existence because it was not enacted until 1939. It cannot operate retroactively to affect the 15-year sentence imposed in 1931. Neither could this Section affect the sentence imposed December 19, 1947, because at that time the appellee was not in prison and was not serving any sentence.
It is apparent that the Pardon Board was notified of the sentence imposed on December 19, 1947, and it may be that the Pardon Board had a right to defer a revocation of the original pardon until the appellee had served his 5-year sentence. However, the Pardon Board did not attempt to exercise any such right. On January 6, 1948, which was about two weeks after the appellee began serving his 5-year sentence and was actually serving the same, the Pardon Board revoked the conditional pardon and in the order of revocation specifically required the appellee to serve the part of his original sentence which he had not served at the date of the conditional pardon "the same as if no pardon had been granted". This order of the Pardon Board took effect immediately. It did not even attempt to provide that the appellee should begin to serve the balance of this 15-year sentence after the termination of his service of his 5-year sentence, but ordered him to begin serving his sentence the same as if no pardon had been granted.
The appellant contends, however, that section 921.16, F.S.A., was in full force and effect when the 5-year sentence was imposed, and that the Circuit Judge having failed to direct that it should run concurrently with the 15-year sentence, in effect made the two sentences run consecutively. There is no merit in this contention. At the time of the imposition of the 5-year sentence, the appellee was serving no sentence of any kind. He was out on a conditional pardon. The Circuit Judge had no jurisdiction to decide or determine what the Pardon Board might do, or to make any order with reference to a sentence which the appellee was not serving and at the time of the imposition of the 5-year sentence, was not required to serve.
We, therefore, conclude that the Circuit Judge was correct in his holding that these two sentences ran concurrently and not consecutively.
The second question raised by the appellant is that the appellee is not entitled to the credit for gain time on account of the time he had served on the 15-year sentence prior to the time of the conditional pardon. The basis of this contention is that the appellee lost the benefit of gain time on the original sentence for the time served before the conditional pardon was granted because of the terms of the conditional pardon and the order of revocation. Gain time is provided for by Section 954.06, F.S.A. This section provides for the loss of gain time because of conduct of the prisoner while he is in prison and serving his sentence, such as, escape, or attempt at escape, mutinous conduct, or other serious misconduct, but it makes no provision whatsoever with reference to the conduct of a person who had been granted a conditional pardon. In considering this question, we should not confuse the difference in applicable principles of law concerning conditional pardons and paroles.
The appellee was entitled to full credit for the gain time he had earned on the 15-year sentence prior to the conditional pardon; the gain time on the balance of his 15-year sentence after the conditional pardon was revoked the same as if no pardon had been granted, and to gain time on the 5-year sentence which ran concurrently with the balance of the 15-year sentence. The gain time was correctly computed and at the time of the filing of the petition for writ of habeas corpus, taking into consideration the correct calculation of gain time, the appellee had completely served his sentences and was entitled to be discharged.
Affirmed.
SEBRING, C.J., and CHAPMAN and ROBERTS, JJ., concur.