Greenwood v. Gladden

• Decision Date: 06 July 1962
• Citation: 231 Or. 396,74 Adv.Sh. 1053,373 P.2d 417
• Parties: Kelly Gene GREENWOOD, Appellant, v. Clarence T. GLADDEN, Warden of the Oregon State Penitentiary, Respondent.
• Court: Oregon Supreme Court

Page 417

373 P.2d 417

231 Or. 396

Kelly Gene GREENWOOD, Appellant, v. Clarence T. GLADDEN, Warden of the Oregon State

Penitentiary, Respondent.

Supreme Court of Oregon, In Banc.

Argued and Submitted March 7, 1962.

Decided July 6, 1962.

Duane R. Ertsgaard, Salem, argued the cause and submitted a brief for appellant.

Harold W. Adams, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief was Robert Y. Thornton, Atty. Gen.

Before McALLISTER, C. J., and ROSSMAN, WARNER, PERRY, SLOAN, O'CONNELL and GOODWIN, JJ.

O'CONNELL, Justice.

Plaintiff filed a petition for a writ of habeas corpus in the circuit court for Marion county seeking release from the penitentiary. Defendant's return to the writ shows that on June 24, 1957 petitioner was sentenced to serve a term in the penitentiary not to exceed four years; that on October 9, 1958 he was released on parole; that on March 27, 1961 his parole was revoked by order of the State Board of Parole and Probation, whereupon petitioner was returned to the penitentiary to serve out the balance of sentence without credit for the time during which he was on parole. Petitioner demurred to the return, on the ground that the return showed on its face that petitioner had served the four-year sentence imposed upon him. The demurrer was overruled and a judgment dismissing the petition was entered. Petitioner appeals from that judgment.

The sole issue on appeal is whether a parolee who has violated his parole and is recommitted to the penitentiary is entitled to have credited against the term of his sentence the time spent on parole.

ORS 144.390 provides as follows:

'A prisoner recommitted for violation of parole, conditional pardon or probation shall serve out his sentence, and the time during which he was out on parole is not a part thereof.'

The statute clearly covers the case before us. Petitioner contends, however, that the statute is in direct conflict with the holding in Anderson v. Alexander, 191 Or. 409, 229 P.2d 633, 230 P.2d 770, 29 A.L.R.2d 1051 (1951) in which it was said that a parolee continues in the custody of the Warden during the parole period. Petitioner argues that if, during parole, he was still in custody of the Warden he necessarily continued to serve his sentence and that he must therefore be given credit for the time so served.

The Anderson case merely recognizes that for certain purposes a person on parole continues to be under the custody of the Warden; it does not hold that custody during parole is in all respects tantamount to incarceration. It is within the power of the legislature to require a parole violator to serve out his sentence without credit for the time during which he is on parole. The legislature can constitutionally delegate...