SULLIVAN, Judge.
Following his Amended Petition for Writ of Habeas Corpus, appellee Thais, on July 27, 1971, was ordered released from the custody of the appellant Phend subject however to a delay of 30 days in order to permit the State of Illinois to take custody upon a charge pending against Thais in the latter State.
In essence it is the State's
The chronology of events deemed pertinent to this appeal are as follows:
Other events and dates injected into the proceedings and which constitute facets of the arguments herein are:
and
It is the State's claim that the period during which Thais was an escapee and the period during which he was a "parole delinquent" may not be credited toward service of his 1 to 5 year sentence.
At the outset it must be clearly stated that the record is absolutely devoid of evidence that Thais was ever declared a parole delinquent or a parole violator. Thus the second barrel of the State's argument results in a misfire and an imposition upon the time of this Court. We would heartily recommend to the State that in the future, argument briefs be researched and written not unmindful of the record. Creativity and imagination have their place in appellate
Therefore, as pertinent to the order below, time served by Thais is affected only, if at all, by the time he was an escaped fugitive.
The time served upon his commitment, exclusive of the escape period, is therefore 2 years, 2 months and approximately 3 days.
Ex parte Clifford (1867) 29 Ind. 106 is determinative of the appeal before us, and the decision gained certain revitalization in Overlade v. Wells (1953) 234 Ind. 436, 127 N.E.2d 686, which admittedly deals with parole violation as opposed to escape, but which emphasizes that an escapee or parolee may not benefit by his own misconduct with respect to service of his sentence. In Ex parte Clifford, supra, the Court held:
With respect to the "escape time" argument of the State, Thais defends the Habeas Corpus Order upon the following premise: That the State may not successfully claim that Thais's sentence was tolled by the period during which he was an escapee since he had not been convicted of the separate and distinct crime of Escape as defined in I.C. 1971, 35-1-96-9 being Ind. Ann. Stat. (Burns 1956) § 10-1807.
As hereofore noted, Thais defends the Habeas Corpus order partially upon the supposition that having dismissed the separate "escape" charge against him, the State is estopped to rely upon the escape period as extending the original period scheduled for his confinement. Such assertion is unaccompanied by supportive authority and in the opinion of this Court is a blatant absurdity. The established and uncontroverted fact is that Thais did escape. Whether he was convicted for the separate statutory offense is of no moment.
The Public Defender's brief itself clearly indicates the futility of Thais's argument in quoting from Hendrixson v. Lash (1972) Ind., 282 N.E.2d 792
Further treatment would merely burden the time of this Court and of the publishers of reported opinions. Suffice it to say that we do not take lightly our appellate burden but we do begrudge the imposition made by unnecessary appeals. We affix the blame in such instances wherever it might lie — upon opportunists who may represent a prospective appellant; upon an appellant himself who legitimately (or otherwise) sees principle or delay, if not justice, in his appeal; upon the State, which having failed to prepare its case below wishes its "chestnuts pulled from the fire"; or a trial judge who refuses or fails to recognize his error.
The judgment below is hereby reversed and the cause remanded with instructions to deny the Petition for Writ of Habeas Corpus.
BUCHANAN, P.J., and WHITE, J., concur.
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