Spann v. Whitworth, S91A1683
| Decision Date | 27 February 1992 |
| Docket Number | No. S91A1683,S91A1683 |
| Citation | 262 Ga. 21,413 S.E.2d 713 |
| Parties | SPANN v. WHITWORTH, Commissioner. |
| Court | Georgia Supreme Court |
James C. Bonner, Jr., Athens, for Spann.
Michael J. Bowers, Atty. Gen., John C. Jones, Asst. Atty. Gen., Atlanta, for Whitworth.
While serving an eight-year sentence in the custody of the Georgia Department of Corrections, appellant escaped and was subsequently arrested in Muscogee County. He was retained there for prosecution on offenses which antedated the offense on which his eight-year sentence was based. Appellant was returned to the Department of Corrections after the Muscogee County charges resulted in a guilty plea and a three-year sentence to be served concurrently with the eight-year term. When the Department of Corrections credited the time appellant spent in Muscogee County jail only to the sentence imposed in Muscogee County, appellant sought to have the Department credit that time to his eight-year term as well. Appellee, Commissioner of the Department of Corrections, refused to recompute appellant's sentence, so appellant sought a writ of mandamus requiring appellee to give him the credit he sought. This appeal is from the denial of the writ of mandamus.
1. The stated rationale of the trial court's decision not to credit appellant's eight-year sentence with the Muscogee County jail time was that appellant should not benefit from his escape. That same rationale is apparent in the opinion issued by the Attorney General on this subject in 1983. In response to questions from appellee's predecessor, the Attorney General opined that a prisoner who escapes remains in escape status until returned to the direct custody of the Department of Corrections (then the Department of Offender Rehabilitation); that such a prisoner is not entitled to credit for any jail time which accrues between capture and return to the custody of the Department, whether that jail time is spent in another state or in a Georgia county jail; that a prisoner who is sent to a county jail from prison for prosecution is entitled to jail time credit against both the old and new sentences (if concurrent), but a prisoner who escapes and is held in a county jail for prosecution is entitled to credit only on the new sentence. Op.Atty.Gen. 83-21. Clearly, the distinction in treatment is based on the fact of escape and is punitive in nature. The problems with that approach are that the law already contains sanctions for escaping from lawful custody (OCGA § 16-10-52) and that this extra-legislative attempt to punish is contrary to the policy underlying the statutory provisions concerning credit for jail time.
The clear policy behind OCGA §§ 17-10-9 through 17-10-12 is that time spent in incarceration under the authority of this state or a political subdivision thereof should count toward the time which a prisoner must serve. If every county of this state were sovereign, the result would be different. 1 However, counties are merely political subdivisions of the state, and a prisoner incarcerated at the command of one of those political subdivisions is still subject to the sovereignty of this state. It follows, then, that a prisoner who escapes from state incarceration and is then arrested and incarcerated by a political subdivision of the state is still incarcerated under the power of the same sovereign. That being so, there is no valid reason to toll the running of that prisoner's existing sentence until the prisoner is actually in the physical custody of a Department of Corrections facility. The State's argument that a ruling contrary to the trial court's will encourage escape (a slightly different phrasing of the trial court's concern that appellant might benefit from his escape) is not persuasive. As noted above, the legislature has provided a sanction for escape and the sentence imposed for that offense may be set to run consecutively to an existing sentence. OCGA § 17-10-10(b); Hambrick v. State, 256 Ga. 148(3), 344 S.E.2d 639 (1986).
2. Removing the fact of escape from consideration of the problem involved in this case does not completely solve the problem. There remains the fact that appellant seeks to have his Muscogee County jail time credited to both sentences. We believe appellee is correct in objecting to such a computation.
The solution lies not in giving double credit for jail time, as appellant seeks, but in applying a sensible interpretation of OCGA § 17-10-11, which provides in pertinent part as follows: "Each person convicted of a crime in this state shall be given full credit for each day spent in confinement awaiting trial...." This provision is consistent with the policy that those who must be confined in jail before and after trial, either because they cannot be released on bail or because they have not yet been delivered to the custody of the Department of Corrections, should have credit against their sentence for that period of confinement. See OCGA §§ 17-10-9 & 17-10-12; Murphey v. Lowry, 178 Ga. 138, 172 S.E. 457 (1933). That policy, however, has no application to a defendant who, because of pre-trial bail and post-conviction appeal bond, spends no time in confinement until commencing service of the sentence. That defendant is not entitled to credit for jail time because that defendant has not been deprived of any liberty on account of the prosecution which led to the sentence. The same rationale applies to the defendant who would not have been at liberty before and after the most recent conviction because that defendant was already...
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