Brown v. Brittain , 13 Brief Times Rptr. 598 ( 1989 )

ERICKSON, Justice,

dissenting:

I respectfully dissent. In my view, the cases which support the conclusion reached by the majority require that Brown should be given credit for the time he served in Louisiana. A majority of jurisdictions, relying on White v. Pearlman, 42 F.2d 788 (10th Cir.1930), hold that a prisoner who says nothing when he is mistakenly released is not “at fault,” and his sentence continues to run while he is at liberty. At 572, 573. Pearlman was relied on by the Colorado Court of Appeals in People v. Battle, 742 P.2d 952 (Colo.App.1987), and we cited Pearlman with approval in Watson v. Enslow, 183 Colo. 435, 517 P.2d 1346 (1974).

In my opinion, the majority’s reliance upon United States v. Merritt, 478 F.Supp. 804 (D.D.C.1979), is misplaced and represents the minority view. The conduct of a prisoner subsequent to an erroneous official release is not a relevant factor in determining if he should receive credit for the time he is at liberty. A prisoner mistakenly released by prison officials through no fault of his own should not be penalized for the official error, regardless of his behavior after release. Accordingly, I would affirm the judgment of the district court.