Gamble v. State of Ala.

• Citation: 509 F.2d 95
• Decision Date: 05 March 1975
• Docket Number: No. 74--2290,74--2290
• Parties: Roland Colquett GAMBLE, Petitioner-Appellee, v. STATE OF ALABAMA, Respondent-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 95

509 F.2d 95

Roland Colquett GAMBLE, Petitioner-Appellee, v. STATE OF ALABAMA, Respondent-Appellant.

No. 74--2290.

United States Court of Appeals, Fifth Circuit.

March 5, 1975.

Rehearing and Rehearing En Banc

Denied April 29, 1975.

William J. Baxley, Atty. Gen., Joseph G. L. Marston, III, Asst. Atty. Gen., Montgomery, Ala., for respondent-appellant.

John W. Davis, III, Montgomery, Ala. (Court-appointed), for petitioner-appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before GODBOLD and MORGAN, Circuit Judges, and BOOTLE, District Judge.

GODBOLD, Circuit Judge:

This case presents the following question: By statute a state prisoner sentenced to the penitentiary is given the option of spending his time pending appeal in the local jail or in the state penitentiary to which he has been sentenced. If he chooses the option of jail, must he be credited with his jail time in the computation of time served under his sentence. We find that controlling precedent precludes credit for the jail time so served, and we reverse the District Court on that point.

On July 1, 1971, the appellee was convicted of second degree murder in an Alabama state court. He was sentenced to 30 years' imprisonment in a state penitentiary. Evidently he failed to take an appeal immediately after his conviction and waited until October 12, 1971, before filing a pro se appeal in state court. The appeal resulted in affirmance of conviction on August 15, 1972. Rehearing was denied September 12, 1972.

From the time of his arrest, and through January 31, 1973, when he was transferred to a state penitentiary, appellee was confined at the Etowah County Jail. The state has refused to credit this 16-month period of jailhouse detention in its computation of appellee's time served under his 30-year sentence. The state contends that its denial of credit is mandated by a constitutionally valid state statute which permits a convicted felon taking an appeal to choose between jail and prison as his place of incarceration during the pendency of the appeal. Under this scheme, the appellant can elect a 'direct' or a 'working' appeal. A 'direct' appeal is authorized by Tit. 15 § 372, Code of Alabama, 1940, which provides for release on bail of certain felons but contains no provision for release of those whose sentence exceeds 20 years' confinement. Persons who cannot gain release during appeal are held in county jails. Execution of sentence is suspended while the inmate is housed in jail. However, Tit. 15 § 373, Code of Alabama, 1940, permits the appellant prisoner to waive suspension of sentence execution. Upon waiver, the inmate is transferred from jail to penitentiary, and the sentence begins to run. The taking of a working appeal does not affect the appellate process. The only difference between a working and a direct appeal involves suspension of sentence execution and locus of detention. A direct appeal may be converted to a working appeal 'at any time before the transcript has been forwarded to the clerk of the appellate court.' Evidently the appellee had been advised of his right to waive direct appeal and knowingly elected to remain in jail under § 372.

In a pro se petition for habeas corpus filed February 1, 1974 in federal district court, appellee contended that the state's denial of credit violated various of his federal constitutional rights. The District Court upheld this claim, relying on Robinson v. Beto, 426 F.2d 797 (CA5, 1970); and Hart v. Henderson, 449 F.2d 183 (CA5, 1971). In those cases this court found Texas and Louisiana mandatory suspension of execution statutes unconstitutional under North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). The District Court also relied on Hood v. Alabama, No. 73--265--W (N.D.Ala. June 11, 1973), in which the Alabama optional suspension of execution was found invalid under Robinson and Hart. In Hood, the state was ordered to credit jail time served during a direct appeal in the computation of total time served under sentence.

Hart and Robinson do not control the validity of the Alabama scheme. In those cases this court looked to the requirement enunciated in North Carolina v. Pearce, 395 U.S. at 723--726, 89 S.Ct. at 2079--2081, 23 L.Ed.2d at 668--670, that the state's appellate procedure cannot, consistent with due process, inhibit the exercise of the right of appeal. The statutes scrutinized and ultimately held invalid in Hart and Robinson automatically stayed execution of sentence during pendency of appeal. An automatic stay would necessarily require a prisoner considering an appeal to weigh the doubt of success against the certainty of extended incarceration upon denial of appeal. The natural effect of these automatic stay statutes would be to inhibit the taking of appeals.

The Alabama scheme is, on its face, dissimilar from the Louisiana and Texas automatic suspension statutes. In Alabama stay of sentence execution is avoidable, and avoidance results in no adverse effect to the prisoner taking appeal. Appellee has not contended that despite facial fairness the Alabama statutes in fact operate to curb the taking of appeals. In the absence of such a contention and supportive evidence of a 'chilling' effect, we find the Alabama optional stay of sentence scheme fulfills the due process requirements of Pearce.

Appellee also argues that Pearce's finding that the double jeopardy clause precludes multiple punishments for a single offense compels us to order credit for the jail time served. This contention is foreclosed by Dimmick v. Tompkins, 194 U.S. 540, 24 S.Ct. 780, 48 L.Ed. 1110 (1904), a case in which the Court denied credit under circumstances similar to those in the instant case. Dimmick has not been limited by Pearce or by any other subsequent Supreme Court decision. Its vitality was recently recognized by this court in Allen v. Henderson, 434 F.2d 26, 29 (CA5, 1970).

In Dimmick, the petitioner had been sentenced to two years' imprisonment at hard labor for a federal offense. He took an appeal and arranged to be housed during the 18-month period of appeal in a county jail rather than the penitentiary to which he had been sentenced. When the appeal was decided against him, he was transferred to the penitentiary. Credit for the 18-month period was denied him, and he sought judicial review. Ultimately the Supreme Court held that he was not entitled to credit. The Court noted that Dimmick's sentence specified 'imprisonment in . . . prison' and that he had arranged for detention in jail during the pendency of the appeal. Under these circumstances jail time was not time served 'under the judgment' but rather was 'owing to (Dimm...