Ex parte Bice, 3 Div. 171
| Decision Date | 30 June 1964 |
| Docket Number | 3 Div. 171 |
| Citation | 42 Ala.App. 547,171 So.2d 261 |
| Parties | Ex parte Edward Herbert BICE. |
| Court | Alabama Court of Appeals |
Edward Herbert Bice, pro se.
Richmond M. Flowers, Atty. Gen., and Owen Bridges, Asst. Atty. Gen., for the State.
This is an original proceeding asking that we 'take whatever action [is] necessary to set the record straight.'
The prayer in the application relates to the denial of relief by way of habeas corpus in the Circuit Court of Montgomery County. The petitioner states that he gave notice of appeal. The Attorney General, saying in effect that this notice was given irregularly in that it was taken by way of a letter written to the judge instead of being addressed to the circuit court, moves to strike the application.
The petitioner, while on parole from the Alabama penitentiary, left the State without permission, was arrested in Florida, convicted, and sentenced to 300 days in the Dade County jail. The allegations are not clear as to what steps the State of Alabama took thereafter, though, it seems to be implied that the petitioner was not brought back by Alabama officers.
Two years after release from the Florida sentence, in consequence of petitioner's having been arrested on another charge in Birmingham, he was returned to Kilby Prison. Presumably, this return was ratified by order of a parole court, Code 1940, T. 42, § 12, requiring him to serve the remainder of the sentence on which he had been paroled. The record is not clear as to what disposition was made of the charge of the subsequent offense which led to his arrest in Birmingham.
Under the Fourteenth Amendment to the Constitution of the United States, it would seem that the parole authorities of a state may not, conformably with due process, dangle a suspended sentence, like the sword of Damocles, over a man's head to be let fall upon a mere whim or caprice. There is substantial authority that the waiver of a clear cut right to revoke a parole which is based on the mere disinclination to go to another state to extradite the man is this form of arbitrary action. United States ex rel. Howard v. Ragen, D.C., 59 F.Supp. 374; Greene v. Michigan Dept. of Corrections, 6 Cir., 315 F.2d 546; Colin v. Bannon, 337 Mich. 491, 60 N.W.2d 431.
Consideration of § 30 of the Alabama Constitution forbidding exile is not appropriate. See Anno. 60 A.L.R. 1410, at 1415. Here Bice banished himself.
We are not prepared, on the basis of the application before us, to say that the Pardon and Parole Board of Alabama, in neglecting to bring Bice back from Florida upon a clear cut violation of the terms of his parole, waives this right to declare him delinquent. There is no allegation that the board knew that Bice would be unconditionally released by the Dade County, Florida, authorities. See In re Cammarata's Petition, 341 Mich. 528, 67 N.E.2d 677.
Also, we are not advised that even if the board did know that Bice was about to be discharged unconditionally from the Dade County jail, the running of 'live time' against Bice's then unexpired Alabama sentence would now entitle him to...
To continue reading
Request your trial
-
People ex rel. Flores v. Dalsheim
...v. Kenton, D.C., 252 F.Supp. 344, 345). Another, like Grosso, placed its decision on the theory of waiver by the State (Ex parte Bice, 42 Ala.App. 547, 171 So.2d 261). We think that the latter two rationales staleness and waiver do not provide satisfactory grounds for holding the warrant un......
-
Parham v. Warden, Bridgeport Correctional Center
...that there was a waiver by the state. Greene v. Michigan Department of Corrections, 315 F.2d 546, 547-48 (6th Cir.); Ex parte Rice, 42 Ala.App. 547, 171 So.2d 261; People v. Valle, 7 Misc.2d 125, 164 N.Y.S.2d 67. And still other courts have reasoned that a warrant not executed within a reas......
-
McCowan v. Nelson
...Howard v. Ragen, 59 F.Supp. 374 (N.D.Ill.1945); Colin v. Bannon, 337 Mich. 491, 60 N.W.2d 431 (S.Ct.Mich. 1953); Ex parte Bice, 42 Ala.App. 547, 171 So.2d 261 (C.A.Ala.1964). See also United States v. Gernie, 228 F.Supp. 329 (S.D.N.Y. 1964); Conston v. New Mexico State Board of Probation an......
-
Ex parte Davis
...and serves the common law office of a praecipe, albeit inchoate in form. See Birdsell, 272 Ala. 700, 133 So.2d 696; Ex parte Bice, 42 Ala.App. 547, 171 So.2d 261; also Pate v. Holman, 5 Cir., 341 F.2d Accordingly, we grant Davis a further twenty days to present us with an application (which......