State Ex Rel. Bickman v. DeesState Ex Rel. Bickman v. Dees
Recently this Court in State v. Curtis, 363 So.2d 1375 (La.1978), overruling its earlier decision in State v. Wilson, 360 So.2d 166 (La.1978), held that the application of amended provisions of
These nine consolidated cases, before the Court on petitions for writs, all raise issues concerning the application of State v. Curtis, supra, and the effect of its holding on other statutory provisions relative to diminution of sentence for good behavior. Three distinct problems are presented: (1) a pure Curtis issue, i. e. denial of the opportunity to earn good time diminution under
Eligibility for Diminution of Sentence for Good Behavior
Every inmate in the custody of the Department of Corrections who has been convicted of a felony and sentenced to imprisonment for a stated number of years or months may earn a diminution of sentence by good behavior and performance of work or self improvement activities or both to be known as “good time.” Those inmates serving life sentences will be credited with good time earned which will be applied toward diminution of their sentences at such time as the life sentences might commuted to a specific number of years. The director of corrections shall establish procedures for awarding and recording of good time and shall determine when good time has been earned toward diminution of sentence. The amount of diminution of sentence allowed shall be otherwise provided by law.
This general provision authorizing the awarding of good time for all inmates in the custody of the Department of Corrections was last amended in 1972. Acts 1972, No. 739, § 1.1
In 1975, the legislature added a section C to
No inmate in the custody of the Louisiana Department of Corrections who has been convicted one or more times under the laws of this state of first or second degree murder, manslaughter, aggravated battery; aggravated, forcible or simple rape; aggravated kidnapping; aggravated
or simple burglary; armed or simple robbery; any violation of R.S. 14:67 which is a felony; any violation of R.S. 14:95, R.S. 14:95.1, or R.S. 40:1751 et seq. which is a felony; any violation of the Louisiana Uniform Controlled Dangerous Substances Law which is a felony; or any felony defined as an attempt to commit one of the aforementioned crimes and who has been sentenced as an habitual offender under the Habitual Offender Law as set forth in R.S. 15:529.1 shall be entitled to diminution of sentence for good behavior under this Part, if so ordered by the sentencing court.
Acts 1975, No. 727, § 1 (emphasis added). The provisions of the Act specifically stated that it applied “only to persons convicted under the Habitual Offender Law after September 15, 1975.” Acts 1975, No. 727, § 3.
This added provision was amended in 1977 to provide as follows:
(1) No inmate in the custody of the Louisiana Department of Corrections who has been convicted one or more times under the laws of this state of first or second degree murder; manslaughter; aggravated battery; aggravated, forcible or simple rape; aggravated kidnapping; aggravated or simple burglary; armed or simple robbery; any violation of R.S. 14:67 which is a felony; any violation of R.S. 14:95, R.S. 14:95.1, or R.S. 40:1751, et seq. which is a felony; any violation of the Louisiana Uniform Controlled Dangerous Substances Law which is a felony; or any felony defined as an attempt to commit one of the aforementioned crimes and who has been sentenced as a habitual offender under the Habitual Offender Law as set forth in R.S. 15:529.1 prior to or on September 9, 1977, shall be entitled to diminution of sentence for good behavior under this Part, if so ordered by the sentencing court.
(2) No inmate in the custody of the Louisiana Department of Corrections who has been convicted one or more times under the laws of this state of first or second degree murder; manslaughter; aggravated battery; aggravated, forcible or simple rape; aggravated kidnapping; aggravated or simple burglary; armed or simple robbery; any violation of R.S. 14:67 which is a felony; any violation of R.S. 14:95, R.S. 14:95.1, or R.S. 40:1751, et seq. which is a felony; any violation of the Louisiana Uniform Controlled Dangerous Substances Law which is a felony; or any felony defined as an attempt to commit one of the aforementioned crimes and who has been sentenced as a habitual offender under the Habitual Offender Law as set forth in R.S. 15:529.1 after September 9, 1977 shall be entitled to a diminution of sentence for good behavior under this Part.
Acts 1977, No. 633, § 1 (emphasis added).
Under Curtis, the controlling date for the application of these statutory provisions can no longer be the date on which the defendant is sentenced as a habitual offender. Rather, reference must be made to the date the offense was committed in order to determine the constitutionally applicable provision relative to good time eligibility. An examination of the various legislative acts and their specified effective dates,2 in
Computation of Good Time
The provisions of this Act shall be applicable to all inmates presently in the custody of the Department of Corrections. . . provided that those inmates presently serving longer sentences will not be credited with less good time than they might already have earned under the provisions of Act 426 of 1964.
The provisions of this Act shall also be applicable to all inmates hereafter sentenced to the Department of Corrections for any term longer than one month as imposed or to which sentence is computed.
Acts 1972, No. 739, § 2.
In 1977, however, the legislature added a new section to
That the statute has been changed to some inmate‘s disadvantage after the commission of the offense is clear. Prior to 1977, eligible inmates, on recommendations based on a thorough evaluation of their behavior, work performance and efforts toward self-improvement, could receive a credit of good time of approximately forty-five percent, i. e. “twenty-five days per month for time actually served.” Following the amendment, this provision allowing for a maximum diminution of sentence of approximately forty-five percent would still apply to inmates convicted on or before September 9, 1977. However, under the amendment as written, eligible inmates convicted on September 10, 1977 or thereafter, regardless of the date of the commission
It has been stated that “any law which was passed after the commission of the offense for which the party is being tried is an ex post facto law when it inflicts a greater punishment than the law annexed to the crime at the time it was committed, or which alters the situation of the accused to his disadvantage.” In re Medley, 134 U.S. 160, 10 S.Ct. 384, 33 L.Ed. 835 (1890), quoted in State v. Curtis, supra (emphasis added). Applying these principles, courts have held that the ex post facto clause prevents legislatures from retroactively increasing punishment for past criminal acts and consequently have struck down as unlawful increases in punishment retroactive changes in post conviction treatment of individuals. See Lindsey v. Washington, 301 U.S. 397, 57 S.Ct. 797, 81 L.Ed. 1182 (1937); In re Medley, supra; State v. Bullock, 263 La. 946, 269 So.2d 824 (1972); State ex rel. Woodward v. Board of Parole, 155 La. 699, 99 So. 534 (1924). In State v. Curtis, supra, we found that the changes in
Under the rationale of Curtis and the cases relied upon therein, there is no analytical distinction between a change in eligibility for diminution of sentence for good behavior and a change in the basis for computing good time credits. While there is no vested right in either situation, both amendments are not simply “minor changes in the handling of prisoners” which should not automatically trigger application of the ex post facto prohibition, but rather significantly affect “release eligibility.” State v. Curtis, supra.3 Thus
Forfeiture of Good Time By Inmates Whose Parole Has Been Revoked
Prior to 1972,
In 1974, however,
It has been argued, however, that these provisions on forfeiture of good time upon revocation of parole are in conflict with general statutory provisions on parole revocation and that the latter provisions should control. In 1952, the legislature revised this state‘s statutes and at that time provided with respect to parole revocation as follows:
If it is determined that the parolee has violated his parole . . . the Board shall revoke the said parole and the said parolee may be required to serve out the whole term for which he was sentenced, subject to the deduction of the time he had served prior to his parole and to any diminution of sentence for good behavior he shall have earned or may thereafter earn.
Acts 1952, No. 162, § 8 (emphasis added). Although the statute was amended in 1956, the language with respect to diminution of sentence for good behavior remained unchanged. Acts 1956, No. 66, § 1. In 1968,
When the parole of a parolee has been revoked by the board for the violation of the conditions of parole, the parolee shall be returned to the institution from which he was paroled to serve the remainder of his sentence as of the date of his release or parole, subject to consideration by the board of any commutation of the sentence, the time he served prior to his parole, and any diminution of sentence earned for good behavior while in the institution.
Acts 1968, No. 191, § 1 (emphasis added).6 The effective date of this Act was July 31, 1968. The legislature again amended the
Rules of statutory construction provide that where two statutes deal with the same subject matter, they should be harmonized if possible, but that if there is a conflict the statute specifically directed to the matter at issue must prevail as an exception to the statute more general in character. Esteve v. Allstate Ins. Co., 351 So.2d 117 (La.1977); State v. Maduell, 326 So.2d 820 (La.1976); Teachers’ Retirement System v. Vial, 317 So.2d 179 (La.1975). See also Sutherland, Statutory Construction, § 51.05 (4th ed. 1974). Applying this principle we conclude that the controlling provision with respect to forfeiture of good time in the present context is
Having determined that
Applying these basic principles to the statute providing for forfeiture of good time earned on that portion of a sentence served prior to parole when parole is subsequently revoked, we conclude that a violation of the ex post facto prohibitions occurs when the statute operates against a person who was paroled prior to July 26, 1972, the effective date of Acts of 1972, No. 739, § 2. However, it is not an ex post facto law to apply the provision to inmates paroled thereafter. In those cases, at the time of parole, inmates were or are put on notice by the wording of the statute that should they violate a condition such that parole is revoked and they are returned to the institution, they will as a consequence thereof forfeit good time credit. Thus the date of parole, rather than the date of the commission of the offense, triggers the application of the forfeiture provisions. Cf. State v. Williams, 358 So.2d 943 (La.1978); State v. Guidry, 169 La. 215, 124 So. 832 (1929); Lafave and Scott, Criminal Law § 12 (1969).
Thus in summary, all inmates paroled prior to July 26, 1972, may not be subjected to the forfeiture provisions, while all inmates paroled on July 26,1972 or thereafter shall, upon their return to the institution following revocation of parole, forfeit all good time earned on that portion of the sentence served prior to parole up to a maximum of 180 days.
In State ex rel. Bickman v. Dees, 367 So.2d 283; State ex rel. Bell v. Dees, No. 62,696; State ex rel. Wade v. Dees, No. 62,800; State ex rel. Cornell v. Dees, No. 62,802; and State ex rel. Gifford v. Dees, No. 62,918, each petitioner states that the offense for which he is incarcerated was committed prior to September 10, 1977, but after September 15, 1975. Assuming the correctness of the allegations, for the reasons assigned above, the classification of petitioners’ sentences as without benefit of diminution of sentence for good behavior is improper at this time, and the cases are remanded to their respective district courts for resentencing under the discretionary authority vested with the trial judge by
In State ex rel. Stevens v. Dees, No. 62,717 and State ex rel. Hinkley v. Phelps, No. 63,072, each petitioner states that his offense(s) was (were) committed prior to September 10,1977. Assuming the correctness of these allegations, for the reasons assigned above, the cases are remanded to the respective district courts with instructions to order the Department of Corrections to recompute petitioners’ good time allowance at the rate of a maximum of twenty-five (25) days per month pursuant to
In State ex rel. Paulhus a/k/a O‘Brien v. Custodian of Records, et al, No. 62,969, and State ex rel. Manuel v. Phelps, No. 63,069, each petitioner complains of the forfeiture of good time he accumulated prior to parole when he was subsequently returned to the institution following parole revocation. Petitioner Paulhus a/k/a O‘Brien alleges that he was released on parole on September 20, 1974, while petitioner Manuel asserts that his parole release date was March 13, 1973. Assuming the correctness of these allegations, for the reasons assigned above, the petitioners are not entitled to relief. Since they were both paroled after the July 26, 1972 effective date of
For the reasons assigned, the writs in State ex rel. Bickman v. Dees, 367 So.2d 293; State ex rel. Bell v. Dees, 367 So.2d 293; State ex rel. Stevens v. Dees, 367 So.2d 293; State ex rel. Wade v. Dees, 367 So.2d 294; State ex rel. Cornell v. Dees, 367 So.2d 294; State ex rel. Gifford v. Dees, 367 So.2d 294; and State ex rel. Hinkley v. Phelps, 367 So.2d 294 are granted and the cases are remanded to their respective district courts for further proceedings in accordance with law.
SANDERS, C. J., and MARCUS, J., dissent, adhering to their dissent in State v. Curtis, 363 So.2d 1375 (La.1978).
SUMMERS, J., dissents.