ARTERBURN, Chief Justice.
Petitioner, proceeding pro se, filed a "writ of habeas corpus" with the LaPorte County Circuit Court, the county of his confinement. That court denied relief due to its finding that it was without jurisdiction to entertain the petition. No motion to correct errors appears in the record. The case came to this court on appeal from that decision. In its appellate brief, the State of Indiana chose to respond to the merits of petitioner's argument instead of relying upon any jurisdictional or procedural defects.
Petitioner was convicted in the Marion County Criminal Court, Division One, of the crime of second degree burglary and was sentenced to the Indiana State Prison for a term of not less than two years nor more than five years. The date of the original sentence was April 26, 1967. If he had remained in custody, the maximum expiration date of his imprisonment would have been April 26, 1972. On February 6, 1970, he escaped from a prison work detail. He was subsequently apprehended in Florida and returned to the Indiana State Prison. Upon his return, prison officials recomputed the maximum expiration date of his sentence to compensate for the period of his absence, and found that he must serve until November 23, 1972.
Petitioner contends that the due process clauses of both the United States and Indiana constitutions [U.S.Const. amend. XIV, § 1; Ind.Const. art. 1, § 12] require that before he is denied credit for the period of time that he was on vacation in sunny
The proposition that an unauthorized absence from confinement will extend the expiration date of a prisoner's sentence, is well settled. Such an issue was presented to this court over 100 years ago in Ex Parte Clifford (1867), 29 Ind. 106. That case involved a writ of habeas corpus in which the petitioner, who had escaped from prison and had been recaptured after the termination of his original sentence, complained that his confinement was illegal because it exceeded his original expiration date. It was determined that the appellant could not "avail himself of the fact that while he was illegally at large the date at which his imprisonment was to have terminated had passed." Id. at 108.
Other courts considering the question have consistently reached the same conclusion. Ex Parte Vance (1891), 90 Cal. 208, 27 P. 209; Hollon v. Hopkins (1879), 21 Kan. 638; Dolan's Case (1869), 101 Mass. 219; State ex rel. Siehl v. Jorgenson (1919), 176 Minn. 572, 224 N.W. 156; Application of Edwards (1891), 43 N.J. Law 555, 39 Am.R. 610; Henderson v. James (1895), 52 Ohio St. 242, 39 N.E. 805. We believe the expression of the Massachusetts court in Dolan's Case, supra, to be most appropriate:
In Overlade v. Wells (1953), 234 Ind. 436, 127 N.E.2d 686, this court held that where a parolee is declared delinquent, he may be required to make up the maximum term of his sentence notwithstanding that the time of his initial expiration date might have passed:
The only statute dealing with this matter appears to be IC 1971, 35-1-20-7, Burns' Ind. Stat. Ann. § 9-1022 (1956 Repl.) which provides that:
We find that the summary recomputation of the prisoner's termination date conforms with due process of law requirements. Any determination of a new expiration date involves primarily a mathematical calculation.
The United States Supreme Court has stated that "due process varies from case to case in accordance with differing circumstances ..." FCC v. WJR (1949) 337 U.S. 265, 276, 69 S.Ct. 1097, 1103, 93 L.Ed. 1353, 1360. Certainly, the function of resetting a prisoner's expiration date, in this circumstance is properly styled as an administrative duty.
In construing 18 U.S.C. § 3568 [concerning the giving of credit for pre-sentence confinement], a United States Circuit Court of Appeals has stated that "the computation of the service of a legally rendered sentence is an administrative responsibility ..." Lee v. United States (9th Cir.1968), 400 F.2d 185, 189.
The only consideration will be simple mathematics of adding the time of absence to the original expiration date. It is significant to note that the petitioner in the present case does not claim the recomputation of his sentence is incorrect. A prisoner is not without a remedy in cases where the recomputation of his maximum expiration date is erroneous. In Ex Parte Clifford (1867), 29 Ind. 106, 109, this court stated that a writ of Habeas Corpus would be adequate to raise such issues. Our present rules of procedure specifically provide for such a consideration. Rule P.C. 1, § 1 provides:
Finally we point out that IC 1971, § 34-1-57-13, as found in Burns' Ind. Stat. Ann. § 3-1918, provides that:
We find that the appellant Hendrixson's commitment does not expire until November 23, 1972, therefore, no court in this case, including the LaPorte Circuit Court, had jurisdiction to discharge the appellant.
The judgment of dismissal of the trial court is affirmed.
DeBRULER, J., concurs with opinion.
GIVAN and PRENTICE, JJ., concur in majority opinion.
HUNTER, J., concurs in majority opinion and in DeBRULER, J.'s, concurring opinion.
DeBRULER, Justice (concurring).
The trial court dismissed appellant's petition for writ of habeas corpus on the grounds that it had no jurisdiction. No determination on the merits of appellant's claim was made by the trial court. No motion to correct errors was filed in the trial court by appellant. However, both briefs before us contain lengthy discussion of the legal issues, and no factual dispute exists in the case, and in this posture, I believe that we are correct in disposing of this case on its merits. I likewise concur in the disposition made of the merits of appellant's claim against him.
However, I would point out, that in my view, the trial court here, should have considered appellant's petition as a post-conviction petition, and ordered it transferred to the Marion County Criminal Court, Division One, the court of origination, rather than dismissing the petition because it had no jurisdiction. Such a disposition of this petition is warranted by P.C. Rule 1(A) (1) (e), which affords a remedy as follows:
and requires transfer of certain petitions for writ of habeas corpus in the following language:
HUNTER, J., concurs.