Mayo v. State ex rel. Cox

• Decision Date: 05 February 1952
• Citation: 56 So.2d 547
• Parties: MAYO, Custodian of the State Prison, v. STATE ex rel. COX.
• Court: Florida Supreme Court

Page 547

56 So.2d 547

MAYO, Custodian of the State Prison, v. STATE ex rel. COX.

Supreme Court of Florida, Division B.

Feb. 5, 1952.

Richard W. Ervin, Atty. Gen. and Reeves Bowen, Asst. Atty. Gen., for appellant.

Ray Sandstrom, Lakeland, for appellee.

MATHEWS, Justice.

This is an appeal from a final judgment on a petition for habeas corpus filed in the Circuit Court of Union County.

On April 24, 1931 the appellee was convicted of a felony and sentenced to serve 15 years. On December 9, 1937, he was released on a conditional pardon, which provided that if it should be revoked because cause of a breach of its conditions, '* * * he shall thereafter suffer such part of such original sentence of said court as has not already been suffered by him at the date of this pardon'. While this conditional pardon was in effect, the appellee, on December 19, 1947, was convicted of another crime and sentenced to serve a 5-year term, and immediately entered prison and began serving said sentence. On the 6th day of January, 1948, and after the appellee had begun serving his new sentence, the Pardon Board revoked the conditional pardon heretofore mentioned, and said order contained the following language: '* * * does hereby order that he shall be required to serve such part of the sentence of the court, wherein he was convicted, which he had not already served at the date of said pardon, the same as if no pardon had been granted'. (Italics supplied.)

It was contended in the habeas corpus proceeding in the Circuit Court that the two sentences ran concurrently after the revocation of the conditional pardon, and that the appellee was entitled to gain time served on the 15-year sentence prior to the granting of said conditional pardon, and that the time served on said sentence before the conditional pardon was granted, and also the time served on the original sentence after the conditional pardon was revoked, plus the gain time completed the service of the 15-year sentence. Also, it was contended that the 5-year sentence, plus the gain time on that sentence, had completed the service of the same and the appellee was entitled to be discharged.

The appellant in due course filed an answer in which he claimed that the two sentences did not run concurrently, but ran consecutively, and that the appellee was not entitled to any gain time on his 15-year sentence prior to his release, or otherwise, and that he was not entitled to be discharged because the sentence had not been completed.

On July 16, 1951, the Circuit Judge entered his final judgment agreeing with the contentions of the appellee and discharging him from the said two sentences and ordering him released from the appellant's custody upon making bail for his appearance to answer and abide by the judgment of this Court on appeal. The final judgment granted leave to the appellant to appeal therefrom.

Two questions are presented: (1) 'Did the two sentences run concurrently?', and (2) 'Was the appellee entitled to gain time on account of the time served by him prior to his release on the conditional pardon?'.

At the time the appellee was convicted and sentenced to 15 years, on April 24, 1931 Section 921.16, F.S.A., which provides for consecutive sentences unless the Court expressly directs otherwise, was not in existence because it was not enacted until 193...