Eubanks v. State, 00-2534

• Decision Date: 01 February 2002
• Docket Number: 00-2534
• Parties: Anthony Dewayne Eubanks v. State
• Court: Alabama Court of Criminal Appeals

Anthony Dewayne Eubanks v State

CR-00-2534

OCTOBER TERM, 2001-2002

ALABAMA COURT OF CRIMINAL APPEALS

02/01/2002

Appeal from Tuscaloosa Circuit Court (CC-97-245 and CC-97-460)

BASCHAB, JUDGE

The appellant, Anthony Dewayne Eubanks, filed a petition for a writ of habeas corpus, arguing that the Alabama Department of Corrections ("DOC") has not properly calculated the good time to which he is entitled. Without requiring a response from DOC, the circuit court summarily denied the petition. This appeal followed.

On November 18, 1998, the appellant pled guilty to two counts of third-degree robbery. The trial court sentenced him to serve concurrent terms of fifteen years in prison, but split the sentences and ordered him to serve one year in prison and the remainder on probation. He was later released on probation, but his probation was subsequently revoked. He is now serving his sentences on the third-degree robbery convictions.

The appellant argues that DOC has improperly refused to give him good time credit for time he spent incarcerated after he completed the minimum period of confinement on his split sentences. Specifically, he contends that, when he was imprisoned on the split portion of his sentences, he actually served more than the one-year minimum period of confinement. He concludes that DOC has erroneously refused to give him good time for that extra time he spent in prison above the one-year minimum period of confinement and instead has given him jail credit for that time. In its order denying the petition, the circuit court stated:

"To the extent that the motion seeks to have the time spent in the penitentiary beyond the one (1) year split sentence treated as prison time for the purpose of calculating good time, the court denies said motion as such matters are to be determined by the Department of Corrections."

(C.R. 10, 21.) Contrary to the circuit court's finding, "[a] petition for writ of habeas corpus is the proper procedure to test whether the state has properly calculated the amount of time an inmate must serve in prison. Risner v. State, 522 So. 2d 336 (Ala. Cr. App. 1988)." Morris v. State, 565 So. 2d 288, 289 (Ala. Crim. App. 1990). Furthermore, the appellant has made allegations that appear to be meritorious. Therefore, we remand this case to the circuit court with instructions that that court make specific, written findings of fact as to the appellant's contention. On remand, the circuit court may allow DOC to respond to...