Anderson v. South Dakota Bd. of Pardons and Paroles, 20536

• Decision Date: 24 February 1999
• Docket Number: No. 20536,20536
• Citation: 590 N.W.2d 915,1999 SD 41
• Parties: David Lynn ANDERSON, Petitioner and Appellant, v. SOUTH DAKOTA BOARD OF PARDONS AND PAROLES, Appellee. . Considered by Briefs
• Court: South Dakota Supreme Court

Page 915

590 N.W.2d 915

1999 SD 41

David Lynn ANDERSON, Petitioner and Appellant, v. SOUTH DAKOTA BOARD OF PARDONS AND PAROLES, Appellee.

No. 20536.

Supreme Court of South Dakota.

Considered by Briefs Feb. 24, 1999.

Decided April 7, 1999.

Nichole Carper of Minnehaha County Public Defender, Sioux Falls, for appellant,

Mark Barnett, Attorney General, Frank Geaghan, Assistant Attorney General, Pierre, for appellee.

PER CURIAM.

¶1 David Lynn Anderson appeals a trial court order affirming a Parole Board order revoking twenty months of his good time. We affirm.

FACTS

¶2 In February 1990, Anderson was convicted of one count of distribution of controlled substances and one count of possession with intent to distribute controlled substances. He was given consecutive sentences of seven years and five years in the penitentiary and ordered to serve the seven year sentence first. Anderson was paroled in November 1993, but his parole was revoked in October 1994. As part of the revocation of his parole, the Parole Board also revoked twenty-eight months of good time applicable to the seven year sentence.

¶3 After returning to the penitentiary, Anderson filed a motion with the sentencing court for credit against his sentences for the time he served in jail before his original sentencing in 1990. Accordingly, the sentencing court entered an order in April 1996 granting Anderson 143 days credit for time served.

¶4 In December 1996, Anderson wrote a letter to the Parole Board advising them that, with the credit for time served granted by the sentencing court, he "flat timed" ¹ his seven year sentence in May 1994. Since that preceded his parole revocation the following October, Anderson further advised that the revocation of his good time could only apply to his five year sentence and not his seven year sentence. Accordingly, he requested a recalculation of his remaining sentences ² which was denied by the Parole Board.

¶5 On September 23, 1997, Anderson filed a motion for the Parole Board to reconsider its revocation of good time. He again asserted the Parole Board had incorrectly revoked good time applicable to his seven year sentence instead of his five year sentence and argued that, with the good time applicable to his five year sentence, he flat timed that sentence on September 19, 1997. As a result, he contended it was no longer possible for the Parole Board to revoke good time applicable to the five year sentence. The Parole Board disagreed and, on October 24, 1997, entered an amended order revoking his parole and further revoking twenty months of good time applicable to the five year sentence instead of the twenty-eight months applicable to the seven year sentence. ³ Anderson appealed and the trial court affirmed. He now appeals to this Court.

ISSUE

¶6.Did the Parole Board err in revoking Anderson's good time?

¶7 Anderson repeatedly asserts that good time cannot be revoked from a completed sentence. Accordingly, he contends that by October 1997, it was too late for the Parole Board to revoke the good time applicable to his five year sentence because he flat timed that sentence in September 1997. On that basis, he argues the Parole Board erred in revoking twenty months of his good time.

¶8 Anderson cites only scant authority for his key contention that good time cannot be revoked from a completed sentence. He relies principally on SDCL 24-5-2 which provides in pertinent part that, "[w]henever any inmate has been discharged under the provisions of § 24-5-1 [i.e., sentence reduced for good conduct], he shall at the time of his discharge be considered as restored to the full rights of citizenship." Anderson also makes reference to the principle noted by the trial court that, "[w]here good-conduct credits have been allowed, and a prisoner's sentence as reduced by such credits has been fully served, the credits may not then be forfeited and the sentence revived." Annotation, Withdrawal, Forfeiture, Modification, or Denial of Good-Time Allowance to Prisoner, 95 A.L.R.2d 1265, 1277 (1964).

¶9 Despite the accuracy of the above quotations, none of Anderson's authorities account for the effect of consecutive sentences on the revocation of good time. In that regard, the general rule is that, "[a]ll possible deductions for good time accredited to a prisoner serving consecutive sentences are destroyed by bad conduct even though such conduct occurs after one or more of the successive sentences has been served." 60 AmJur2d Penal and Correctional Institutions § 231 (1987)(emphasis added). As more fully explained by the Tenth Circuit Court of Appeals in Grant v. Hunter, 166 F.2d 673, 674 (10th Cir.1948):

It is well settled that the imprisonment of...