Opinion
June 6, 1950.
Francis Sheppard, in pro. per.
Richard W. Ervin, Attorney General, Reeves Bowen, Assistant Attorney General, for respondent.
The return to writ of habeas corpus shows that on August 2, 1937 the petitioner, Francis Sheppard, drew a sentence from the Criminal Court of Record, Duval County, to serve ten years in the penitentiary. It also shows that on June 9, 1949, he was sentenced by the Circuit Court of Nassau County to serve one year in the State Penitentiary. On December 22, 1940, he was granted a six months parole, which was later extended to December 1, 1941. No further extension was granted, but petitioner remained at large until June 11, 1949, when he was again taken in custody.
The point for determination is whether or not the sentence continued to run so that it expired in 1947, ten years after it was imposed, notwithstanding the years petitioner was at large beyond the expiration of his parole.
Petitioner contends that this question should be given an affirmative answer, that he should not only be released, but that he is entitled to the protection granted one in his status by Ex parte Alvarez, 50 Fla. 24, 39 So. 481, 111 Am.St.Rep. 102, 7 Ann. Cas. 88. He also contends that the service of his sentence continued during his parole and its extension and for the period he was at large after the extension expired. He further contends that his sentence expired in 1947, ten years after it was imposed. He relies on Sellers v. Bridges, 153 Fla. 586, 15 So.2d 293, 148 A.L.R. 1240 to support this contention.
We do not think the latter case has any application whatever to the case at bar. The parole involved in Sellers v. Bridges was authorized by statute and ran for the balance of the prisoner's term. The statute fixed the terms of the parole and nothing was left for the Parole Commission to do so long as the terms of the parole, as defined by the statute, were complied with. The parole in question was granted pursuant to authority given the Pardon Board under Section 12, Article IV of the Constitution, F.S.A. The Pardon Board had power to, and did fix its terms and they expired long before the sentence expired. The second extension expired December 1, 1941, so petitioner was not a parolee at large after that date. Reports of his whereabouts after the latter date did not extend his parole since he at no time offered to surrender his person. It necessarily follows that he was at large without authority of law after December 1, 1941.
We therefore conclude that his one year sentence is still outstanding and that his ten year sentence is incomplete because the time from the conclusion of the second extension of his parole to June 11, 1949, the date of his reincarceration, did not count on his sentence. The petitioner is therefore remanded.
It is so ordered.
ADAMS, C.J., and THOMAS and ROBERTS, JJ., concur.