In Re Messerschmidt

Opinion

GARDNER, P. J.

Petitioner, a prison inmate, was ordered released by mistake. Just how this occurred is academic. While he knew a mistake had been made, he did not cause it and was without fault. He remained at large 203 days before being returned to prison. He now wants credit for that 203 days against his remaining sentence. The Department of Corrections has declined to give him that credit. Petitioner filed a petition for writ of habeas corpus in the superior court which, after a hearing, denied the petition. After petitioning this court unsuccessfully, he filed a similar petition in the Supreme Court which ordered that an alternative writ be issued by this court. We have done so and now deny the petition.

Under Penal Code section 2900, a prison term begins upon delivery of the prisoner to the prison. That section further provides that if thereafter he is temporarily released, such time is not to be computed as part of his term. Now petitioner urges this court to establish a rule that when a prisoner is mistakenly released from confinement, he is entitled to credit against his prison term for the period during which he remained free. We decline to establish any such rule.

[516]

Petitioner relies on a series of federal cases

(White

v.

Pearlman

(10th Cir. 1930) 42 F.2d 788;

Lanier

v.

Williams

(E.D.N.C. 1973) 361 F.Supp. 944; and

Shelton

v.

Ciccone

(8th Cir. 1978) 578 F.2d 1241) which hold that in certain factual situations elementary, principles of due process demand that a mistakenly released prisoner receive credit against his prison term for the time he has been erroneously at large. In these cases due process is interpreted to mean fundamental fairness and fair play and governs situations in which the mistakenly released prisoner peacefully reestablishes himself as a productive member of the community only to have his good works destroyed by reincarceration after many years.