State v. Davis

199 S.E.2d 37 (1973)

19 N.C. App. 459

STATE of North Carolina v. John Lewis DAVIS.

No. 7322SC594.

Court of Appeals of North Carolina.

September 19, 1973.

Atty. Gen. Robert Morgan by Asst. Atty. Gen. John R. B. Matthis, Raleigh, for the State.

Warren A. Winthrop Statesville, for defendant-appellant.

CAMPBELL, Judge.

In August 1968 the defendant was sentenced to two years' imprisonment upon three charges of larceny which were consolidated for the purpose of the judgment. This sentence was suspended, and the defendant was placed upon probation for a period of three years. The defendant thereafter violated the terms of probation, and on 18 February 1971 the probation was revoked and the two years' active sentence placed into effect. In October 1971, the defendant was placed on parole and remained on parole until March 1973, when *38 he was recommitted to the North Carolina Department of Correction to serve the remainder of his sentence. On 4 April 1973, the defendant filed a petition and motion for credit for the time he was on parole, namely from 21 October 1971 until 22 March 1973.

The defendant relies upon North Carolina G.S. § 15-196.1 which provides:

"The term of a determinate sentence or the minimum and maximum term of an indeterminate sentence shall be credited with and diminished by the total amount of time a defendant has spent, committed to or in confinement in any State or local correctional, mental or other institutution as a result of the charge that culminated in the sentence. The credit provided shall be calculated from the date custody under the charge commenced and shall include credit for all time spent in custody pending trial, trial de novo, appeal, retrial or pending parole and probation revocation hearing: Provided, however, the credit available herein shall not include any time that is credited on the term of a previously imposed sentence to which a defendant is subject."

The defendant argues that while he was on parole he was under supervision of the parole department and that this was tantamount to being in custody and confinement.

North Carolina G.S. § 148-61.1 provides in part:

"(a) . . . The time a parolee is at liberty on regular parole shall not be counted as any portion of or part of the time served on his sentence, . . ."

We find no North Carolina case on the subject, but the federal courts have invaribly held that time spent on parole is not to be credited on an active sentence. Ham v. North Carolina, 471 F.2d 406 (4th Cir. 1973); Hamrick v. Peyton, 349 F.2d 370 (4th Cir. 1965); Hodge v. Markley, 339 F.2d 973 (7th Cir. 1965).

While the defendant on parole may have been under supervision of the rules and regulations of the Board of Paroles and the Department of Correction, nevertheless, he was "at liberty", and the defendant was not entitled to any credit on his prison sentence. The order of Judge Rousseau denying the motion and dismissing the petition was in all respects correct.

Affirmed.

MORRIS and PARKER, JJ., concur.