Kelley v. Wainwright

ADKINS, Chief Justice.

In original habeas corpus proceedings, petitioner seeks credit for certain time he served while incarcerated.

On March 22, 1970, petitioner was sentenced to the State prison. On December 21, 1971, he was granted a parole and remained on parole until he was arrested on April 8, 1973. He was incarcerated in a county jail from April 8, 1973, until August 2, 1973, at which time he was transferred to the State prison. He was given notice of hearing on his parole revocation on September 24, 1973. The hearing was held, and on October 9, 1973, the Parole and Probation Commission revoked the petitioner’s parole effective August 1, 1973.

Petitioner contends that he is entitled to all time served in the county jail while he awaited the parole revocation hearing.

This Court in Brumit v. Wainwright, 290 So.2d 39 (Fla.1973), and Voulo v. Wainwright, 290 So.2d 58 (Fla.1974), held that, inasmuch as a person cannot be on parole and at the same time be in jail, the incarceration of an individual terminates the interruption of his sentence represented by the parole he is serving.

The State concedes the correctness of the issue raised by the petitioner, to-wit: that he should receive credit for the period of April 8, 1973 through August 1, 1973, against the initial sentence from which he was paroled on December 21, 1971, and concurs with his request that the Parole and Probation Commission recalculate the remaining time of his initial sentence so as to give credit for the April 8, 1973 through August 1, 1973 period of incarceration.

The petitioner should be given credit on his sentence for the period of time from April 8, 1973 until and including August 1, 1973.

It is so ordered.

ROBERTS, ERVIN, BOYD and Mc-CAIN, JJ., concur.