Opinion
44248 Record No. 810706.
January 22, 1982
Present: Carrico, C.J., Cochran, Poff, Compton, Thompson, and Stephenson, JJ., and Harrison, Retired Justice.
Good-time credit not allowed under Code Sec. 53-213 for time served by prisoner after amendment by Acts 1977, c. 182 eliminating exception in Code Sec. 53-213 for good-time credit for time served for conviction of felony committed while a prisoner, the petitioner for writ of habeas corpus serving time under conviction of November 18, 1976 prior to date of amendment; Code Sec. 1-16 applied.
(1) Criminal Procedure Statutory Construction — Good Conduct Allowance for Persons Convicted After October 1, 1942 (Code Sec. 53-213) — Exception for Prisoner Convicted of Felony While Confined Attached by Operation of Law at Moment Judgment Entered.
(2) Criminal Procedure — Statutory Construction — Good Conduct Allowance for Persons Convicted After October 1, 1942 (Code Sec. 53-213) — Amendment by Acts 1977, c. 182 Eliminating Exception for Conviction While Confined — Repeal Not to Affect Liabilities; Mitigation of Punishment (Code Sec. 1-16) — 1977 Amendment to Code Sec. 53-213 Applicable Only to Judgment Pronounced After Amendment Took Effect and Good- Time Credit Not Allowed on Time Served After 1977 for 1976 Conviction.
A prisoner petitioned for a writ of habeas corpus. He was convicted on November 18, 1976 for a felony committed while a prisoner. At that time an exception in Code Sec. 53-213 disallowed good-time for time served under such a conviction. However, by Acts 1977, c. 182 this exception was repealed. The petitioner contended he was entitled to good-time served under the 1976 conviction after the repeal of the exception in 1977 and the parties stipulated that if this good-time credit was allowable, the petitioner was eligible for immediate release. The Trial Court upheld the petitioner's contention, finding that the prohibition of good-time credit was not part of the Court's 1976 sentence, issued the writ and ordered that the prisoner be released pending appeal upon a $1,000 bond, without security and upon his own recognizance. The Warden of the Mecklenburg Correctional Center appeals.
1. Code Sec. 53-213, concerning good conduct allowance of persons convicted after October 1, 1942 excepting, as of the date of petitioner's conviction on November 18, 1976, good-time upon a term of confinement for a felony committed while the prisoner is confined, the statutory forfeiture attached by operation of law at the moment judgment was entered.
2. The amendment of Code Sec. 53-213 by Acts 1977, c. 182, which eliminated the exception for felonies committed while a prisoner, is applicable under Code Sec. 1-16 only to a judgment pronounced after the new law took effect. Consequently the petitioner is not entitled to good-time credit for time served on the 1976 conviction after the 1977 amendment took effect.
Appeal from a judgment of the Circuit Court of Powhatan County. Hon. Thomas V. Warren, judge presiding.
Reversed and remanded.
Thomas D. Bagwell, Assistant Attorney General (Marshall Coleman, Attorney General, on brief), for appellant.
Gerald T. Zerkin for appellee.
Appealing from the issuance of a writ of habeas corpus, Edward C. Morris, Warden of Mecklenburg Correctional Center, challenges the good-time credit the trial court awarded Leroy Smith, Jr.
On November 18, 1976, Smith was convicted of possession of an illegal weapon and unlawful wounding, offenses committed while he was a prisoner, and a total of three years was added to the sentence he was serving. At that time, Code Sec. 53-213, which authorized "good-time" credit against a sentence for time served "without violating any written jail or prison rule or regulation," contained the following exception:
[N]o prisoner who is convicted of a felony committed . . . while confined . . . shall be eligible for any such credit upon any term of confinement received as a result of conviction of such felony.
The General Assembly amended the statute and repealed this exception effective July 1, 1977. Acts 1977, c. 182. As grounds for habeas, Smith contended that he was entitled to credit for good-time served after the repeal, and the parties stipulated that, if so entitled, Smith was "eligible for immediate release from custody." Finding that "prohibition of good time credit was not part of the Court's sentence of November 18, 1976," the trial judge upheld Smith's contention. By order entered February 19, 1981, he issued the writ and ordered that, pending appeal, Smith be released upon a $1000 bond, without security, and upon his own recognizance.
Smith correctly notes that a prisoner earns each discrete award of good-time credit only as he serves the twenty days of his sentence upon which that single good-time credit is computed. Therefore, he concludes, the Department of Corrections must award him credit under the statute as it exists at the time he is serving his sentence rather than the statute extant at the time the sentence was imposed.
We disagree. The trial court erred in finding that Smith's sentence did not prohibit good-time credit. The crimes of which he was convicted and the terms and conditions of the attendant penalties were defined by the statutes in effect when sentence was pronounced. Part of the penalty prescribed by the General Assembly for crimes committed by a prisoner during his confinement was forfeiture of his inchoate right to earn good-time credit. At the moment judgment was entered, the statutory forfeiture attached by operation of law. Had the judgment order contained an express prohibition against good-time credit, it would have been mere surplusage.
Code Sec. 1-16 provides that
No new law shall be construed to repeal a former law, as to any offense committed against the former law, or as to . . . any penalty, forfeiture, or punishment incurred . . . under the former law, or in any way whatever to affect any such offense . . . or any penalty, forfeiture, or punishment so incurred . . . and if any penalty, forfeiture, or punishment be mitigated by any provision of the new law, such provision may . . . be applied to any judgment pronounced after the new law takes effect.
Applying Code Sec. 1-16, we hold that the 1977 amendment to Code Sec. 53-213 was applicable only to a penalty, forfeiture, or punishment imposed by "judgment pronounced after the new law [took] effect" and that it did not "in any way whatever" affect the forfeiture incurred by Smith on account of the judgment pronounced in 1976.
We will reverse the judgment, vacate the writ, and remand the case with instructions to restore Smith to custody to serve the remainder of his sentence.
Reversed and remanded.