442 P.2d 542 | Okla. Crim. App. | 1968
Edward Lyles, O.S.P. #76277, applies to this Court for a writ of mandamus to require the respondent, Ray H. Page, Warden of the State Penitentiary, and Virgil Choate, Record Office Administrator, to compute the sentence petitioner is now serving, according to the chart provided for this purpose in 1958.
Petitioner states that he was sentenced in Johnston County on February 2, 1958 on a conviction of burglary in the second degree, to serve three years in the state penitentiary. He further states that he served a 15-year sentence previously imposed before beginning to serve this current three-year sentence on November 30, 1967.
Petitioner contends that certain changes have been made in the time calculation chart in use at the penitentiary, subsequent to his sentence in 1958, and as a result, petitioner will be required to serve some fifty days additional time, which he would not have been required to serve, had he begun his three-year sentence in 1958; and that such changes in the time calculation chart are ex post facto and discriminatory as to him.
It is elementary that one who seeks relief by mandamus must show that he is clearly entitled to such relief. It is also well established that this petitioner is entitled to have the time in which he may serve and satisfy his prison term calculated only in accordance with the statutes. The use of a time calculation chart by the prison authorities is not provided for in the statutes, or the constitution of the State of Oklahoma, 'and, therefore, no rights have accrued to this petitioner under same. Such calculation chart has been established by the prison authorities for their convenience. Further, the ex post facto operation of laws as promulgated by the State and Federal Constitutions refers only to statutory or constitutional provisions, and not to any administrative rules and regulations, such as the time calculation chart.
Petitioner having failed to state a cause of action for the issuance of a writ of mandamus, the demurrer of the Attorney General is sustained, and the writ denied.
