Ex parte Agee

• Decision Date: 10 May 1985
• Parties: Ex parte Arthur AGEE. (Re Arthur G. AGEE v. STATE). 84-235
• Court: Alabama Supreme Court

Page 161

474 So.2d 161

Ex parte Arthur AGEE.

(Re Arthur G. AGEE v. STATE).

84-235

Supreme Court of Alabama.

May 10, 1985.

R. Shan Paden for Paden, Green, Paden & Bivona, Bessemer, for petitioner.

Charles A. Graddick, Atty. Gen., and Glenn L. Davidson, Asst. Atty. Gen., for respondent.

BEATTY, Justice.

Certiorari was granted under Rule 39(c)(4), A.R.A.P. The facts of this case are recited in the opinion of the Court of Criminal Appeals, 474 So.2d 158. Briefly, those facts show that Agee, a state prisoner, petitioned the Jefferson Circuit Court, Bessemer Division, for a writ of habeas corpus. That court, after an evidentiary hearing, denied the writ. Agee appealed that decision to the Court of Criminal Appeals, which affirmed the trial court's denial and later overruled Agee's application for rehearing.

It was established below that Agee was convicted of larceny on January 20, 1970, and sentenced to a term of one year and a day in the State penitentiary. Agee, 17 years of age at the time, was placed on probation. Probation was later revoked, and he began serving his sentence on January 29, 1971, at Draper Prison. On June 14, 1971, Agee was again convicted of larceny and was sentenced to a seven-year penitentiary term to run concurrently with his prior sentence.

Agee contends that on July 4, 1971, he was released from Draper Prison and told that he was being placed on probation or parole and would be contacted by the proper authorities. The State of Alabama contended below, and here, that Agee was not released but that he escaped from prison by changing from his prison uniform to civilian attire and "walking out with a visitor."

After leaving his confinement, Agee went to live with his father in Birmingham for two months. He then moved to Chicago, returned to Birmingham, and went back to Illinois. No one from the prison or parole authorities ever contacted him during the 12 years he was free, even though, meanwhile, on August 27, 1971, Agee had been indicted by the Elmore County grand jury. On July 7, 1983, Agee was returned to Alabama on a fugitive warrant for escape. He was given a disciplinary board hearing, after which the board found that Agee had violated an institutional regulation on escape. Agee lost store, telephone, and visitation privileges for 60 days; however, the felony escape charge against him was nol-prossed.

In its opinion, the Court of Criminal Appeals held that:

"It follows necessarily that if he was released, instead of escaping, at that time, he was released mistakenly. It follows also that any mistaken release, even by an agent of the prison authorities, does not necessarily constitute a valid release."

The defendant contends that this holding runs counter to well-established legal precedents, and the State of Alabama concedes, as it must, that it was error not to apply those authorities. These are collected and explained in Hartley v. State, 50 Ala.App. 414, 417-418, 279 So.2d 585, 587-588 (1973), whose pertinent part we quote:

"Appellant relies on King v. State, 16 Ala.App. 118, 75 So. 710; Blackwell v. State, 19 Ala.App. 553, 99 So. 49. In King the petitioner had been convicted of grand larceny and was sentenced to thirteen months in the State Penitentiary. On the same day and by the same court, he was also convicted of petit larceny. Being unable to pay the fine and costs in the petit larceny conviction, he was sentenced to fifty-nine days hard labor for the county to commence at the expiration of the sentence received in the grand larceny conviction. Upon completion of his sentence in the grand larceny conviction, he was told his time was up and he was free to go home. Three months after his release he was arrested by the sheriff and placed in the county jail to serve the sentence he received in the petit larceny conviction. In granting petitioner's writ of habeas corpus, the Court pointed out:

" '... [I]t can be seen that the officers having custody of this convict manifested a gross carelessness and ignorance in the discharge of their duties under these statutes [now Tit. 45, § 32, Code of Alabama, 1940, Recompiled 1958], and that by virtue of such carelessness or ignorance, the second judgment of conviction against the petitioner cannot be put into operation. The convict, having been discharged and given his liberty by the officers having him in custody, cannot be called upon after the expiration of the period covered by his sentence, to enter again into penal servitude, and therefore the action of the sheriff in arresting petitioner is without authority of the law and is void....'

"...

"What we have in this case is a defendant who had been sentenced to six years imprisonment, then subsequently sentenced to another two years on a different offense at a different time. Petitioner served the two years on the latter offense and was released, without fault on his part, not having served any time on the prior offense. Upon being apprehended on other charges, the mistake was discovered; and, since the time for serving the six year sentence had not expired, he was returned to prison to serve the unexpired portion. Thus, he received credit for the time he was at liberty.

"It is our conclusion that the trial judge ruled correctly. The case of White v. Pearlman, 10 Cir., 42 F.2d 788, is persuasive on this point. There ...