The state takes the position that Cook's delay in bringing this petition for habeas is unreasonable, and that it has been prejudiced by Cook's delay. Under the authority of Jackson v. Jones, 254 Ga. 127, 129 ( 327 S.E.2d 206) (1985), this court has not applied the doctrine of laches to habeas corpus cases. Even if the doctrine were applicable it would not serve to bar Cook's claim in this case.
See, e.g., Vellucci v. Cochran, 138 So.2d 510, 512 (Fla.1962); Jackson v. Jones, 254 Ga. 127, 128, 327 S.E.2d 206 (1985); Butcher v. State, 196 Md.App. 477, 490 (2010) (finding “the majority rule [in the United States] to be that, when one of a series of consecutive sentences is nullified, the next valid sentence begins on the date set for the commencement of the invalidated sentence”); Calvin v. Missouri Dept. of Corrections, 277 S.W.3d 282, 288–289 (Mo.App.2009) (holding that time spent incarcerated on an invalidated conviction must be credited toward another valid, unrelated sentence); Burlew v. Missouri Dept. of Corrections, 340 S.W.3d 259, 263 n. 3 (Mo.App.2011) (noting that the rule adopted in Calvin v. Missouri Dept. of Corrections, supra at 287, is consistent with other States); State v. Smith, 267 N.C. 755, 756, 148 S.E.2d 844 (1966). See generally ABA Standards for Criminal Justice, Sentencing Alternatives and Procedures § 18–4.7(c) (1979); Wagner, Sentence Credit for “Dead Time,” 8 Crim. L. Bull. 393 (1972).
See, e.g., Vellucci v. Cochran, 138 So.2d 510, 512 (Fla.1962); Jackson v. Jones, 254 Ga. 127, 128 (1985); Butcher v. State, 196 Md.App. 477, 490 (2010) (finding "the majority rule [in the United States] to be that, when one of a series of consecutive sentences is nullified, the next valid sentence begins on the date set for the commencement of the invalidated sentence"); Calvin v. Missouri Dept. of Corrections, 277 S.W.3d 282, 288- 289 (Mo.App.2009) (holding that time spent incarcerated on an invalidated conviction must be credited toward another valid, unrelated sentence); Burlew v. Missouri Dept. of Corrections, 340 S.W.3d 259, 263 n. 3 (Mo.App.2011) (noting that the rule adopted in Calvin v. Missouri Dept. of Corrections, supra at 287, is consistent with other States); State v. Smith, 267 N.C. 755, 756 (1966). See generally ABA Standards for Criminal Justice, Sentencing Alternatives and Procedures § 18-4.7(c) (1979); Wagner, Sentence Credit for "Dead Time," 8 Crim. L. Bull. 393 (1972).
Jackson set forth the rule that 254 Ga. 127, 128 (1) ( 327 SE2d 206) (1985). where consecutive sentences for separate offenses are imposed at the same time, and where the underlying conviction for which the earlier sentence was imposed is reversed or set aside, the time the defendant served under the invalidated sentence will be credited toward the latter sentence so that the latter sentence will be held to have commenced at the date of commencement of the earlier, invalid sentence.
The American Law Reports has been a commonly cited authority by those courts that have authorized advancement. E.g., State v. Berumen II, slip op. No. A-10596, 2011 WL 3631134 (Alaska App.) ; Jackson v. Jones, 254 Ga. 127, 327 S.E.2d 206 (1985) ; State v. Owen, 2 Ariz.App. 580, 410 P.2d 698 (1966). ¶60 When they have concluded a first sentence is void, the next question has been whether fairness requires advancing the commencement date of a second or subsequent sentence.
While Morgan is on point, it appears there is a split in those jurisdictions that have decided this issue. Compare Roach v. State, 27 Kan.App.2d 561, 7 P.3d 319, 323 (2000), and Ex parte Owens, 88 Okla.Crim. 346, 203 P.2d 447, 449 (App. 1949), with Jackson v. Jones, 254 Ga. 127, 327 S.E.2d 206, 208 (1985), and State v. Cynkowski 19 N.J.Super. 243, 88 A.2d 220, 223-24 (App.Div. 1952). {15} We expressly join those jurisdictions that have declined to apply laches to habeas proceedings.
Further, the principle of Calvin — that a vacated sentence should be treated "as though it had never existed" — is equally applicable where a lesser sentence is imposed in lieu of the vacated sentence, as where the offender is subject to no substitute sentence whatsoever. See Brown v. State, 291 Ga.App. 518, 662 S.E.2d 297, 299 (2008) (where sentence is vacated but offender is resentenced, any subsequent consecutive sentence begins to run when the substitute sentence terminates; citing Jackson v.Jones, 254 Ga. 127, 327 S.E.2d 206, 207 (1985)). The State also relies on our decision in Pettis v. Missouri, Department of Corrections, 275 S.W.3d 313 (Mo.App. W.D. 2008).
Turning to the decisions of courts other than those of Maryland, we find the majority rule to be that, when one of a series of consecutive sentences is nullified, the next valid sentence begins on the date set for the commencement of the invalidated sentence. The Supreme Court of Georgia so concluded in Jackson v. Jones, 254 Ga. 127, 327 S.E.2d 206 (1985). Jackson had been sentenced on October 4, 1966, to (A) life imprisonment and (B) a consecutive ten year sentence.