Giles v. State

Decision Date22 January 1985
Docket Number7 Div. 361
Citation462 So.2d 1063
PartiesKenneth Edward GILES v. STATE.
CourtAlabama Court of Criminal Appeals

Kenneth Edward Giles, pro se.

Charles A. Graddick, Atty. Gen. and H.P. Nelson, Asst. Atty. Gen., for appellee.


Giles appeals from the summary dismissal of his pro se petition for writ of habeas corpus challenging the legality of his imprisonment.

Appellant's pro se petition alleges that he was convicted of robbery in the Circuit Court of Jefferson County in June of 1976 and sentenced to fifteen years' imprisonment. Subsequently, in November of 1976, appellant was convicted of kidnapping in the same court and sentenced to five years' imprisonment to run consecutive to the robbery sentence. An appeal was taken from the robbery conviction, which was affirmed without opinion by this court on February 20, 1979.

Appellant maintains that on January 20, 1978, he was released from the state prison system. Appellant remained at liberty until August 1982, at which time he was arrested and returned to the state prison system to serve the fifteen-year sentence. Appellant claims no fault can be attributed to him for his untimely release, although he alleges that "[i]n an attempt to cover the error the Department of Correction[s] contended that Giles had been released on bond/appeal," and further he contends that no record of such bond exists.

It is appellant's position that he is "entitled to full credit against any unexpired portion of his sentence for the time during which he was at liberty following his erroneous release." Green v. Christiansen, 732 F.2d 1397, 1399 (9th Cir.1984). Appellant argues that this period of four years, seven months, and one day, plus accumulated good time credit, entitles appellant to immediate release.

The State's brief does not respond to the allegations raised in appellant's petition. The State offers no facts which contradict those set out in the petition. Therefore, the unrefuted facts set out in the petition must be taken as true. Ex parte Floyd, 457 So.2d 961 (Ala.1984); Williams v. State, 461 So.2d 1335 (Ala.Crim.App.1984); Vaughan v. State, 415 So.2d 1231 (Ala.Crim.App.1982). The writ of habeas corpus properly lies where a party is entitled to discharge from a state prison. See Ala.Code (1975), § 15-21-24(2); Canada v. State, 429 So.2d 1127, 1129 (Ala.Crim.App.1982).

In Hartley v. State, 50 Ala.App. 414, 279 So.2d 585, 588 (1973), then-judge Almon quoted with approval the holding of White v. Pearlman, 42 F.2d 788, 789 (10th Cir.1930), wherein it is stated:

"It is our conclusion that where a prisoner is discharged from a penal institution, without any contributing fault on his part, and without violation of conditions of parole, that his sentence continues to run while he is at liberty.... As to whether a prisoner, who knows a mistake is being made and says nothing, is at fault, we do not now consider." (Emphasis added.)

In both Hartley and White, the defendant questioned the propriety of his untimely release and was unquestionably without fault in the granting of his release. Where, however, the defendant has secured his liberty through some illegal or...

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12 cases
  • Brown v. Brittain
    • United States
    • Colorado Supreme Court
    • May 15, 1989
    ...Cir.1984); Lanier v. Williams, 361 F.Supp. 944, 947 (E.D.N.C.1973); Ex parte Agee, 474 So.2d 161, 163 (Ala.1985); Giles v. State, 462 So.2d 1063, 1064 (Ala.Crim.App.1985); People v. Battle, 742 P.2d 952, 953-54 (Colo.App.1987); People v. Incerto, 38 Colo.App. 390, 393, 557 P.2d 1217, 1220 (......
  • State v. Davis
    • United States
    • Arizona Court of Appeals
    • December 24, 1985
    ...illegally paroled toward the mandatory five-year sentence. 115 Ariz. at 594, 566 P.2d at 1340. In the recent case of Giles v. State, 462 So.2d 1063, 1064 (Ala.Cr.App.1985), which also relied on White v. Pearlman, supra, the court held that the trial court had erred in summarily dismissing a......
  • State v. Riske, 88-1879-CR
    • United States
    • Wisconsin Court of Appeals
    • September 7, 1989
    ...Cir.1988); Mobley v. Dugger, 823 F.2d 1495, 1497 (11th Cir.1987); Kiendra v. Hadden, 763 F.2d 69, 73 (2d Cir.1985); Giles v. State, 462 So.2d 1063, 1064 (Ala.Crim.App.1985); Hopkins v. North, 151 Md. 553, 135 A. 367, 368 (1926); Ex parte Philbrook, 121 Neb. 421, 237 N.W. 391, 392 (1931); St......
  • Anderson v. State
    • United States
    • Alabama Court of Criminal Appeals
    • August 12, 1997
    ...on White v. Pearlman, 42 F.2d 788, 789 (10th Cir.1930)). See also McCall v. State, 594 So.2d 733 (Ala.Cr.App.1992); Giles v. State, 462 So.2d 1063 (Ala.Cr.App.1985). Thus,the time should be credited as if the inmate was serving that time in confinement rather than at McCorvey v. State, 675 ......
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