Joseph v. State Division of Corrections, 45677

• Decision Date: 02 October 1974
• Docket Number: No. 45677,45677
• Citation: 301 So.2d 772
• Parties: Andrew JOSEPH, Sr., Petitioner, v. STATE of Florida DIVISION OF CORRECTIONS, Louie L. Wainwright, as Director, and Florida Parole Commission, Respondents.
• Court: Florida Supreme Court

Page 772

301 So.2d 772

Andrew JOSEPH, Sr., Petitioner, v. STATE of Florida DIVISION OF CORRECTIONS, Louie L. Wainwright, as Director, and Florida Parole Commission, Respondents.

No. 45677.

Supreme Court of Florida.

Oct. 2, 1974.

Andrew Joseph, Sr., in pro per.

Robert L. Shevin, Atty. Gen., and Enoch J. Whitney, Asst. Atty. Gen., for respondents.

PER CURIAM.

By this petition for writ of mandamus, petitioner seeks recomputation of his sentence to reflect that his parole revocation be effective on the date the decision was made to revoke his parole rather than effective upon the completion of a sentence imposed for an offense committed while he was on parole. We issued our alternative writ of mandamus and a response has been filed.

Having been convicted of possession of marijuana, petitioner was sentenced on December 27, 1968, to a term of five years and was thereafter on April 20, 1971, granted a parole. On March 17, 1972, he was convicted on two counts of selling or dispensing heroin and sentenced to two consecutive five year terms with credit given for the time served in jail from November 6, 1971, to December 2, 1971, and from February 3, 1972, to the date of commitment order, March 23, 1972. On January 11, 1973, the Florida Probation and Parole Commission entered an order of revocation of parole which was expressly made effective as of the completion of the sentence for the offenses he committed while on parole.

This Court stated in Brumit v. Wainwright, 290 So.2d 39 (Fla.1973), that,

'In the present case, petitioner was on parole at the time he was tried and convicted of the firearms possession charge. The revocation of his parole was expressly made effective as of the completion of the sentence for that offense. Since time spent on parole is forfeited by the prisoner if parole is revoked (Fla.Stat. § 947.21, F.S.A.), petitioner in this case is faced with serving his sentence for possession of firearms (while technically on parole), then having his parole time forfeited and being required to serve the balance of his prior armed robbery sentence. This 'split sentence' results from the fact that the parole revocation is to be effective only upon completion of the firearms possession sentence.

'The effect of making the revocation of parole effective as of this later date (the date of completion of sentence imposed for offense committed while the prisoner was on parole) is to place the petitioner in jail while simultaneously saying that he is still out on parole. But in our system of justice a man cannot be both in jail and out on parole at the same time; he is either in or out. There are no 'free' men in jail. As we said in Adams (Adams v. Wainwright, 275 So.2d 235 (Fla.1973)), 'Everybody's got to be some place!' Petitioner is entitled to pay his debt to society only one time, and that without interest; he has a right to serve his sentence at one stretch, not in bits and pieces.

'We recognize that our courts have previously approved of parole revocations effective upon the expiration of sentence for an unrelated offense in such cases as Simmons v. State, 217 So.2d 343 (Fla.App.2d 1969); Duchein v. Cochran, 127 So.2d 97 (Fla.1961); and Johnson...