State v. Mullins, 647 N.E.2d 676

State v. Mullins

647 N.E.2d 676

Ind. Ct. App.

1995

Check Treatment

OPINION

STATON, Judge.

Thе State of Indiana ("the State") appeals from the trial court's judgment dismissing the chargе of battery, a class A misdemean- or, 1 against Amanda Mullins ("Mullins"). In its appeal, the State presents one restated issue for our review: whether the trial court erred in dismissing the charge.

We reverse and remand.

The facts most favorable to the judgment reveal that on June 16, 1998, Mullins was involved in an аltercation with a correctional officer while incarcerated in the Indiana Women's Prison. Following this incident, the Department of Correction corducted a disciplinary hearing and found Mullins guilty of committing battery ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍on the correction officer. Mullins wаs placed on 180 days of disciplinary segregation and was deprived 30 days credit timе. The State subsequently charged Mullins with battery based upon this incident. Mullins filed a motion to dismiss the criminal charge which the trial court granted. The State now appeals.

*678 The Statе contends that the trial court erred when it granted Mullins'® motion on the grounds that criminal prоsecution of the battery charge would subject her to double jeopardy.

A defendant has a constitutional right not to be put twice in jeopardy for the same offense. Ind. Const., art. 1, § 14 and U.S. Const. amend. V and amend. XIV. The concept of double jeopardy embraces prohibitions against successive prosecution and multiple punishmеnt for the same offense. Me-hidal v. State (1998), Ind.App., 623 N.E.2d 428, 484.

However, this constitutional prohibitiоn of double jeopardy applies ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍only to criminal prosecutions. Williams v. State (1986), Ind., 493 N.E.2d 431, 433. An administrative punishment by prison officials does not preclude a subsequent prosecution arising out of the same act. Id. The Department of Correction is authorized to administratively punish actions done within the prison walls by imposing disciplinary sanctions. Lyons v. State (1985), Ind.App., 475 N.E.2d 719, 728, trams. denied. However, the Department may not lengthen a conviеt's term in prison. Id.

The State therefore contends that the administrative action by the Department of Correction does not preclude criminal prose-ecutiоn for battery based upon the same incident. Mullins counters that the Department prolonged ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍her incarceration thirty days when it ordered the deprivation of eredit time. She contends that this additional time violated her fundamental liberty interest and therefоre subjected her to double jeopardy.

By statute, Indiana provides for the allocation of credit time and the deprivation of credit. See 1.0. 85-50-6-3 through 35-50-6-7. Credit time is basеd upon the behavior of the prisoner. Receipt of credit is conditional upon continued good behavior and may be revoked. IC. 85-50-64; Miller v. Walker (1994), Ind.App., 642 N.E.2d 1000, 1008, trans. pending. A person may be deprived of any part of the credit time he has earned for a violation of a rule of the Department of Correction. I.C. 85-50-6-5.

Credit time is a statutory reward for a lack of conduct that is in ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍violation of institutional rules. Boyd v. Broglin (1988), Ind., 519 N.E.2d 541, 542, reh denied. It is earned toward release on parole for felons, and does not diminish the fixеd term or affect the date on which the offender will be discharged. Id.

Mullins mistakenly concludes that the Department of Correction lengthened her sentence when it ordered the deprivation of credit time. Credit time is a bonus created by statute and the dеprivation of credit time does nothing more than take that bonus away. The deprivаtion of credit time cannot lengthen the fixed term of a prisoner's sentence аnd therefore cannot rise to the level of impinging upon a fundamental liberty interest triggering double jeopardy concerns. CJL Gorman v. Moody (N.D.Ind.1989), 710 F.Supp. 1256, 1266 (work release program statutorily created interest and defendant's disciplinary sanction denying participation in work release program did not affect any protected liberty interest ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍in work release). Accordingly, we reject Mullins' contention that the deprivation of credit time violated her fundamental liberty interest and thus subjected her to double jeоpardy.

As such, we determine that the administrative proceeding by the Department оf Correction does not preclude Mullins from erimi-nal prosecution on the battеry charge. Williaans, supra, at 488. We therefore conclude that the trial court erred when it granted Mullins motion to dismiss.

Reversed and remanded.

HOFFMAN and BAKER, JJ., concur.

Notes

. Ind.Code 35-42-2-1 (1993).