Wingo, Ex Parte Franklin D. Jr. ( 2005 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. AP-75,134

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EX PARTE FRANKLIN D. WINGO, JR., Applicant

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ON APPLICATION FOR WRIT OF HABEAS CORPUS

CAUSE NUMBER 38,369 IN THE 264TH JUDICIAL

DISTRICT COURT BELL COUNTY

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   Per Curiam.



O P I N I O N

   This is an application for a writ of habeas corpus which was transmitted to this Court by the clerk of the trial court pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure. Ex parte Young, 418 S.W.2d 824 (Tex. Crim. App. 1967). Applicant was convicted of possession of methamphetamine, and his sentence was assessed at confinement for a period of eleven years. Applicant did not appeal this conviction.

Applicant contends that he has been denied time credit toward the expiration of his sentence for time spent in confinement in various counties in the State of Florida pursuant to a pre-revocation or blue warrant issued by the Texas Board of Pardons and Paroles ("The Board") on June 26, 1992.

After a remand to the trial court for further factual development and findings, the record before the Court shows that Applicant was arrested in Hardee County, Florida on September 22, 1998 on local charges that included two counts of forgery, two counts of uttering a forged instrument, and one count of grand theft. The booking report also indicates that Applicant was held on the Board's June 26, 1992 pre-revocation warrant. Additionally, Levy County, Florida placed a hold on Applicant based on pending charges allegedly committed within their jurisdiction. Applicant remained in the custody of Hardee County, Florida until he was transferred to Levy County, Florida for a court appearance on October 14, 1998. Applicant was returned to the custody of Hardee County, Florida two days later on October 16, 1998 and remained in their custody until December 28, 1998, the date that Hardee County, Florida dropped or abandoned the charges against Applicant. On December 28, 1998, Applicant was again transferred to Levy County, Florida. Applicant was formally arrested by Levy County officials on the Board's June 26, 1992 pre-revocation warrant on January 11, 1999. At that time, Applicant refused extradition to Texas and remained in the custody of Levy County, Florida until he was released from their custody on February 15, 1999 pursuant to a Levy County, Florida court order issued on February 10, 1999. Applicant was again arrested in Levy County, Florida on April 4, 2000 pursuant to the pre-revocation warrant issued by the Board on June 26, 1992. Under a Levy County court order, Applicant was released from custody on the following day, April 5, 2000. Finally, Applicant was arrested in Marion County, Florida on January 1, 2001 on the following charges: three counts of battery-domestic violence, one count of aggravated assault, and three counts of resisting arrest. Applicant remained in the custody of Marion County, Florida until the charges were disposed of on April 19, 2001. However, on April 20, 2000, while he was still in the custody of Marion County, Florida, Applicant was arrested on the Board's 1992 pre-revocation warrant. Applicant again refused extradition to Texas; however, on May 16, 2001, Applicant was served with a Governor's warrant from the Florida Governor directing Applicant's return to Texas. On June 2, 2001, Applicant was released to Texas authorities. The Board voted to revoke Applicant's release on parole on August 29, 2001.

We find that Applicant is entitled to time credit for the periods of time he was in custody pursuant to a pre-revocation or blue warrant. Ex parte Canada, 754 S.W.2d 660, 668 (Tex. Crim. App. 1988); Ex parte Price, 922 S.W.2d 957, 959 (Tex. Crim. App. 1996), from September 22, 1998 to February 15, 1999, from April 4, 2000 to April 5, 2000, and from January 1, 2001 to the date Applicant's parole was revoked, August 29, 2001. Therefore, the Texas Department of Criminal Justice shall credit Applicant's sentence in cause number 38,369 from the 264th District Court of Bell County, Texas with time credit for all time periods that Applicant spent in custody pursuant to the Board's June 26, 1992 pre-revocation or blue warrant if such time has not already been credited.

Copies of this opinion shall be sent to the Texas Department of Criminal Justice, Correctional Institutions Division, Review and Release Division, and the Board of Pardons and Paroles Division.

DELIVERED: April 13, 2005

DO NOT PUBLISH