Opinion
Theodore L. Sendak, Atty. Gen., William F. Thompson, Asst. Atty. Gen., Walter E. Bravard, Jr., Deputy Atty. Gen., for appellant.
Max Cohen, Gary, for appellee.
ARTERBURN, Chief Justice.
This Court reversed the trial court which released the appellee on a writ of habeas corpus (see the opinion, 267 N.E.2d 382, dated March 17, 1971.) The appellee has filed his petition for rehearing and contests the method used by the court in the calculation of his good time. The appellee, as stated in the original opinion, would have been released normally after serving his term on October 20, 1969. He was released by the trial court under its calculation of good time on July 25, 1969. The appellee contends that when he lost his credit for good time, because of an infraction of the rules, his good time should commence running at the higher rate which he would have had if he had not committed the infraction. Our interpretation of the statute is that when an infraction occurs the prisoner starts anew on the scheduled good time credit at the lowest rate of three days for the first month, four days for the second month, etc. progressively.
Burns' Ind.Stat.Anno. § 13--511, I.C.1971, 11--7--5--1 states:
'Good-time allowance of prisoners--Indiana State Farm--Correctional department of Indiana Women's Prison.--Every prisoner who is now or hereafter may be confined in the Indiana State Farm or correctional department of the Indiana Women's Prison and who, while an inmate of said institution, shall have no infractions of the rules and regulations of the institution nor infractions of the laws of the state of Indiana or laws of the United States recorded against him or her, and who performs in a faithful manner the duties assigned to him or her while a prisoner shall be entitled to a diminution of time from his sentence as indicated in the following table, for the respective months of his sentence (including time being served for unpaid fine or costs) and pro rata for any part of a month. In cases of prisoners sentenced for a specified number of days instead of months, good time shall be computed on the basis of thirty (30) days to the month.
Number of MonthsTotal Good of Sentence Good TimeTime Made 1 _______________ 3 days _______________ 3 days 2 _______________ 4 days _______________ 7 days 3 _______________ 5 days _______________ 12 days 4 _______________ 6 days _______________ 18 days 5 _______________ 7 days _______________ 25 days 6 _______________ 8 days _______________ 33 days 7 _______________ 9 days _______________ 42 days 8 _______________ 10 days _______________ 52 days 9 _______________ 10 days _______________ 62 days 10 _______________ 10 days _______________ 72 days 11 _______________ 10 days _______________ 82 days 12 _______________ 10 days _______________ 92 days 13 _______________ 10 days _______________ 102 days 14 _______________ 10 days _______________ 112 days 15 _______________ 10 days _______________ 122 days 16 _______________ 10 days _______________ 132 days 17 _______________ 10 days _______________ 142 days 18 _______________ 10 days _______________ 152 days 19 _______________ 10 days _______________ 162 days 20 _______________ 10 days _______________ 172 days 21 _______________ 10 days _______________ 182 days 22 _______________ 10 days _______________ 192 days 23 _______________ 10 days _______________ 202 days 24 _______________ 10 days _______________ 212 days'Any prisoner who shall have been sentenced to a term of imprisonment for a longer period of time than twenty-four (24) months shall, in addition to the good time provided in the foregoing table, be entitled to a diminution of ten (10) days per month from his sentence for each month which such prisoner is confined beyond such period of twenty-four (24) months. (Acts 1923, ch. 38, § 1, p. 127; 1943, ch. 28, § 1, p. 59.)'
It is to be noted under this statute that the prisoner is entitled to good time only if he 'shall have no infractions of the rules.' Burns' Ind.Stat.Anno. § 13--512, I.C.1971, 11--7--5--2 provides that where a prisoner is found guilty of an infraction of the rules, he may be deprived of the good time gained. The objective of the 'good time' statute is to give prison authorities control over the prisoners and induce the prisoners to behave well. With this objective in mind, we feel our interpretation which we have previously stated in our original opinion, carries out more accurately the objective of the statute and gives prison authorities somewhat more latitude.
Under appellee's own calculation, as stated further in his petition for rehearing, he would not have been entitled for release until August 6, 1969. Nevertheless, the trial court released appellee on July 25, 1969.
In view of what we have said, the petition for rehearing is denied.
GIVAN, DeBRULER and PRENTICE, JJ., concur.
HUNTER, J., dissents with opinion.
HUNTER, Judge (dissenting).
A careful review of the petition for rehearing in this case has led me to believe we must reconsider our earlier decision. The issue here involved is the proper manner of computing the accumulation of good time under the Good-time Statute for the Indiana State Prison. Ind.Ann.Stat. §§ 13--511 and 512.
In the case at hand appellant was sentenced October 21, 1968 for a one year term. On February 12, 1969 he committed a prison rule infraction which caused his loss of accumulated good time. Since he had at the date of the offense sixteen (16) days accrued this is what he lost. In our opinion of March 17, 1971 we held that after February 12, 1969, the date of the offense, he again began to build up good time credit. Where I believe we erred is in computing his rate of accumulation as through he were in the first month of his sentence, that is, at a rate of three days for the first month etc. The statute (§ 10--512) does not provide for such a change in the accumulation rate in addition to the loss of the accumulated time. Rather, appellant should have begun to accumulate at the Third month rate of five days per month.
As I read the statute the language
'* * * shall have the power to deprive such prisoner of any portion or all of the good time gained.'
allows only a taking of the days built up until then and not also of the rate of build up of future time. The majority opinion states: 'The one year sentence theoretically would terminate on October 21, 1969', that is, if all of the time served in the institution was 'bad time' as distinguished from 'good time'. I believe the court is in error when, under the schedule set forth therein it allows good time beginning March 12, 1969 at three days, and by so doing places the defendant in the position of accruing good time only at the same rate beginning March 12th as if that was the first day of his first month of confinement. It appears that by so doing the court has judicially legislated into the 'good time' statute the provision that when any time is taken away from an inmate as diminution of his sentence that he automatically then starts to accrue 'good time' as if he were in the first month of his sentence. It is apparent that such an interpretation is judicial legislation and is writing a provision into the good time statute which the Indiana General Assembly did not see fit to do.
For all the foregoing reasons I would grant rehearing and affirm the judgment of the trial court.