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COMMONWEALTH EX REL. TATE v. BURKE (02/07/50)

February 7, 1950

COMMONWEALTH EX REL. TATE
v.
BURKE, WARDEN



Original jurisdiction, No. 321. Miscellaneous Docket, No. 9. Petition for writ of habeas corpus, in case of Commonwealth of Pennsylvania ex rel. Hezekiah Tate v. Cornelius J. Burke, Warden, State Penitentiary, Eastern District, et al. Writ granted and relator discharged; reargument refused March 20, 950.

COUNSEL

Herbert L. Maris, for relator.

Ralph B. Umsted, Deputy Attorney General, with him T. McKeen Chidsey, Attorney General, for Pennsylvania Board of Parole, intervening defendant.

Before Maxey, C.j., Drew, Linn, Stern, Stearne and Jones, JJ.

Author: Jones

[ 364 Pa. Page 180]

OPINION BY MR. JUSTICE JONES

This proceeding was initiated by the relator's original petition for a writ of habeas corpus whereon a rule was granted requiring the warden of the Eastern State Penitentiary and the district attorney of Dauphin County to show cause why the writ should not issue. On petition, the Pennsylvania Board of Parole was permitted to intervene as a party respondent (see Act of May 28, 1915, P.L. 616, 12 PS ยง 145) and, thereafter, filed an answer on the merits.*fn1 The matter is now before us on the relator's petition and the Board's answer and has been fully argued by respective counsel both orally and by printed brief.

The question involved is whether the Parole Board has statutory authority to compute the remainder of the period equal to a parolee's maximum term, following his recommitment for a breach of his parole by violating a rule of the Board, from the date of his violation or from the date of his arrest for such breach of parole.

As a detailed recital of the various dates of parole, parole violations, re-parole and recommitments of the relator would tend to confuse rather than clarify, the material facts, none of which is in dispute, will be summarized.

[ 364 Pa. Page 181]

After the relator had served more than the minimum of a ten to twenty year sentence in the Eastern State Penitentiary, he was paroled for the balance of nine years, ten months and twenty-seven days of the then unexpired maximum sentence. Two days after his parole, he violated a condition thereof by leaving the State without permission of the Parole Board which marked him delinquent on its records as of the date of his departure from the State. He was not apprehended, however, for some three and a half years and was then returned to the penitentiary. He was given a credit of only two days (i.e., the period of his unviolated parole) against the remainder of the maximum unexpired term at the date of his parole. Twenty-two months after his recommitment, he was re-paroled; and two years and two months thereafter, he was again marked delinquent for absenting himself from the State without the Board's permission. But his arrest and return to the penitentiary did not occur for a further period of two years and eight months. The only parole violations chargeable to the relator were breaches of Board regulations or conditions attaching to his parole and not for any crime, punishable by imprisonment, committed by him during his parole.

At the time of the relator's last recommitment for parole violation, whereby he is still confined in the penitentiary, the expiration of his maximum sentence, according to the computation of the Board, was figured to be April 25, 1953, notwithstanding that April 10, 1947, was the expiration date of his maximum sentence as originally imposed. The Board arrived at its result by computing the remainder of the period equal to the unexpired maximum term of the relator, as originally sentenced, from the date he breached his parole ...


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