Oglesby v. Leeke, 19917

• Decision Date: 02 December 1974
• Docket Number: No. 19917,19917
• Citation: 210 S.E.2d 232,263 S.C. 283
• Court: South Carolina Supreme Court
• Parties: Wivian T. OGLESBY, Appellant, v. W. D. LEEKE and the Attorney General, Respondents.

Page 232

210 S.E.2d 232

263 S.C. 283

Wivian T. OGLESBY, Appellant, v. W. D. LEEKE and the Attorney General, Respondents.

No. 19917.

Supreme Court of South Carolina.

Dec. 2, 1974.

O. Fayrell Furr, Jr., Columbia, for appellant.

Atty. Gen., Daniel R. McLeod and Asst. Attys. Gen. Emmet H. Clair and Stephen T. Savitz, Columbia, for respondents.

LEWIS, Justice:

Appellant, who, after sentence, escaped, served a sentence in another jurisdiction, and thereafter resisted extradition, now seeks through post conviction procedures to obtain credit on his sentence for the time he was absent during the escape. The lower court denied the request for such credit and this appeal followed. The facts are stipulated.

Appellant entered a plea of guilty to housebreaking and larceny and was sentenced on May 20, 1970, to serve a period of three (3) years, with the sentence to commence on February 7, 1970. While serving this sentence, appellant escaped on July 13, 1970, when to the State of New York, and committed a crime for which he was sentenced on January 21, 1972. He completed the service of the New York sentence on September 7, 1972.

While appellant was confined in New York, a detainer was filed against him there, requesting that he be held for the State of South Carolina upon the completion of that sentence. He thereafter refused to waive extradition. Extradition was finally granted and he was returned to prison in South Carolina on January 18, 1973, for completion of the service of the three (3) year sentence imposed in 1970.

After appellant filed his present application for post conviction relief, he entered a plea of guilty to escape and was sentenced to serve for 'eighteen months consecutive to the present sentence.'

Appellant contends that (1) he should be given credit against his 1970 sentence for the entire period that he was away because of his escape; (2) if not for the entire time, then for the period of his incarceration in the State of New York; and, (3) if not entitled to credit for the foregoing, he should be given credit for the period of time between the completion of his New York sentence and his return to South Carolina, a period of four (4) months and eleven (11) days, during which he was being extradited.

There is no merit in either contention of appellant and the lower court properly denied him credit for any of the time he was away during his escape, whether his absence be chargeable to his simply being on the run, or serving a sentence in New York, or resisting extradition.

Appellant's entire absence was because of his escape and his resistance to efforts of the State of South Carolina to effect his return for the service of his sentence. It is undisputed that no part of his absence or imprisonment in New York was in execution of the South Carolina sentence and he is entitled to no credit for any of the time during his escape.

As a general rule, a sentence can be satisfied only by death, service of the required time, or relief therefrom by competent authority. Under the present facts, the escape of appellant tolled the running of the sentence he was then serving and the time of his imprisonment under that sentence did not again begin to run until his return to the South Carolina prison on January 18, 1973. 21 Am.Jur.2d Criminal Law, Section 545; 24B C.J.S. Criminal Law § 1995(7); Vaughn v. Commonwealth of Virginia, D.C., 307 F.Supp. 688; Phillips v. Dutton, 5 Cir., 378 F.2d 898.

Appellant, of course, is now under an eighteen (18) month consecutive sentence for escape, which will begin immediately upon the completion of the service of the 1970 sentence.

Section 55--6 of the 1962 Code of Laws provides that should an escapee be...