See Ex parte Agee, 474 So.2d 161, 163 (Ala. 1985) (relying on White v. Pearlman, 42 F.2d 788, 789 (10th Cir. 1930)). See also McCall v. State, 594 So.2d 733 (Ala.Cr.App. 1992); Giles v. State, 462 So.2d 1063 (Ala.Cr.App. 1985). Thus, the time should be credited as if the inmate was serving that time in confinement rather than at liberty.

In fact, this Court can draw no other conclusion but that without the aid of Alabama law, specifically that an inmate erroneously released from prison through no fault of his own is entitled to credit for the time he spent at liberty on that erroneous release, McCall v. State, 594 So.2d 733, 734 (Ala.Crim.App. 1992) ("McCall did make factual allegations that taken as true, would entitle him to habeas corpus relief: that he was erroneously released, that his release occurred through no fault of his own, and that he had not been given credit for the time he spent at liberty on that erroneous release."), citing Giles v. State, 462 So.2d 1063 (Ala.Crim.App. 1985), Phillips simply has no possibility of showing that he is entitled to the habeas corpus relief he seeks in this Court. Cf. Boutwell v. Nagle, 861 F.2d 1530, 1532 (11th Cir. 1988) ("In Palmer v. Dugger, 833 F.2d 253 (11th Cir. 1987), this court stated, `[a]s a general rule, a state prisoner has no federal constitutional right to credit for time served prior to sentence absent a state statute granting such credit.' . . . If, absent a state statute, a prisoner has no right to credit for time served before he or she has been convicted, then without a statute the prisoner certainly has no right to credit for time spent in out-of-state custody while he or she is an escapee from the state's prison system.

Many courts have cited Pearlman for the proposition that a prisoner who says nothing when mistakenly released is not "at fault," with the result that the prisoner's sentence ran during the time he was at liberty. Green v. Christiansen, 732 F.2d 1397, 1400 (9th Cir. 1984); Lanier v. Williams, 361 F. Supp. 944, 947 (E.D.N.C. 1973); Ex parte Agee, 474 So.2d 161, 163 (Ala. 1985); Giles v. State, 462 So.2d 1063, 1064 (Ala.App. 1985); People v. Battle, 742 P.2d 952, 953-54 (Colo.App. 1987); People v. Incerto, 38 Colo. App. 390, 393, 557 P.2d 1217, 1220 (1976); Carson v. State, 489 So.2d 1236, 1238 (Fla.App. 1986). These cases, however, fail to recognize that Pearlman expressly refused to decide whether a prisoner who says nothing when mistakenly released is "at fault" for purposes of deciding whether he should receive credit for the time he was at liberty.

To analogize, a prisoner who escapes from custody, who remains at large for a period, and who is then recaptured will not be allowed credit against his sentence for the time he was at liberty. Giles v. State, 462 So.2d 1063, 106A (Ala.Cr.App. 1985); Anderson v. State, 710 So.2d 491 (Ala.Cr.App. 1997). Likewise, a probationer who violates the conditions of his probation and avoids arrest cannot be rewarded by "crediting" the time the probationer is sought by law enforcement officials.

See Ex parte Agee, 474 So.2d 161, 163 (Ala. 1985) (relying on White v. Pearlman, 42 F.2d 788, 789 (10th Cir. 1930)). See also McCall v. State, 594 So.2d 733 (Ala.Cr.App. 1992); Giles v. State, 462 So.2d 1063 (Ala.Cr.App. 1985). Thus, the time should be credited as if the inmate was serving that time in confinement rather than at liberty.

The circuit court made the notation "motion granted" on the bottom of the State's response. Clearly, the State failed to respond to the appellant's allegation that he should have, but was not, given good-time credit for the period November 20, 1991 to March 24, 1992. The State failed to refute the facts alleged by the appellant and, therefore, these alleged facts must be taken as true. Giles v. State, 462 So.2d 1063 (Ala.Crim.App. 1985); Boutwell. The circuit court erred by summarily dismissing the petition without holding an evidentiary hearing on the appellant's petition.

However, McCall did make factual allegations that taken as true, would entitle him to habeas corpus relief: that he was erroneously released, that his release occurred through no fault of his own, and that he had not been given credit for the time he spent at liberty on that erroneous release. See Giles v. State, 462 So.2d 1063 (Ala.Cr.App. 1985). If these unrefuted factual allegations are true, McCall's Alabama sentences should have expired around October 17, 1990, considering his sentence date and the pre-sentencing jail credit. Thus, McCall is entitled to a determination on the merits to ascertain facts sufficient to apply the principles stated in Giles.

Although the appellant styles his petition as being made under the authority of Temp. Rule 20, A.R.Crim.P., we note that the relief being sought is available by petition for writ of habeas corpus. Giles v. State, 462 So.2d 1063 (Ala.Cr.App. 1985). The appellant contends that the trial court erred in dismissing his petition based on the limitations provision of Temp. Rule 20.2(c) and that the judgment of that court is thus due to be reversed.

Our state supreme court has recognized it by way of dictum, In re Crow: Habeas Corpus, 60 Wis. 349, 370, 19 N.W. 713, 722 (1884), and so has the attorney general, see 14 Op. Att'y Gen. 512 (1925) (prisoner who because of flu epidemic was refused admission to prison on day his sentence began entitled to credit on sentence for period intervening until his admission). See, e.g., U.S. v. Martinez, 837 F.2d 861, 865 (9th Cir. 1988); Mobley v. Dugger, 823 F.2d 1495, 1497 (11th Cir. 1987); Kiendra v. Hadden, 763 F.2d 69, 73 (2d Cir. 1985); Giles v. State, 462 So.2d 1063, 1064 (Ala.Crim.App. 1985); Hopkins v. North, 135 A. 367, 368 (Md. 1926); Ex parte Philbrook, 237 N.W. 391, 392 (Neb. 1931); State v. Sheehy, 337 A.2d 348, 350 (N.H. 1975). The Tenth Circuit reaffirmed the principle in Hunter v. McDonald, 159 F.2d 861, 862 (10th Cir. 1947).

"Therefore, the unrefuted facts set out in the petition must be taken as true. Ex parte Floyd, 457 So.2d 961 (Ala. 1984); Williams v. State, 461 So.2d 1335 (Ala.Cr.App. 1984); Vaughan v. State, 415 So.2d 1231 (Ala.Cr.App. 1982)." Giles v. State, 462 So.2d 1063, 1064 (Ala.Cr.App. 1985). This case is due to be remanded for an evidentiary hearing on the merits of the appellant's petition.