Morrison v. State, CR-95-1709

• Citation: 687 So.2d 1259
• Decision Date: 27 September 1996
• Docket Number: CR-95-1709
• Parties: Ricky MORRISON v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1259

687 So.2d 1259

Ricky MORRISON v. STATE.

CR-95-1709.

Court of Criminal Appeals of Alabama.

Sept. 27, 1996.

Jonanna Owings and James Moffatt, Athens, for appellant.

Ellen Leonard, Asst. Gen. Counsel, Department of Corrections, for appellee.

COBB, Judge.

The appellant, Ricky Morrison, appeals the trial court's summary denial of his petition for a writ of habeas corpus. He raises three issues on appeal.

According to the appellant, he was sentenced on January 27, 1986, to serve 15 years in prison after being convicted of unlawful distribution of marijuana. On April 20, 1993, he was sentenced to serve 10 years in prison after being convicted of unlawful distribution of a controlled substance, which offense he committed while on parole. This latter sentence, which he began serving on April 20, 1993, was to be served concurrently with the prior, 15-year sentence for unlawful distribution.

The appellant contends that the Department of Corrections ("DOC") did not adequately answer his petition for the writ of habeas corpus in its motion to dismiss his petition. Therefore, according to the appellant, his allegations must be taken as true and his release date be changed to July 96. This contention, however, was not raised at the trial level in the appellant's "Motion to Refute" the motion to dismiss, and is, therefore, precluded from appellate review. " 'To preserve an issue for appellate review, it must be presented to the trial court by a timely and specific motion setting out the specific grounds in support thereof.' " McKinney v. State, 654 So.2d 95, 101 (Ala.Cr.App.1995) (citations omitted).

The appellant contends that it is impossible to determine whether his "good time" has been correctly calculated based on the motion to dismiss, the affidavit of Betty Teague, ¹ and the computer printouts submitted by the DOC. He argues that "there [is] no other evidence presented by the State before the trial court which conclusively attests to the fact that the Department has indeed correctly calculated any good time the Appellant received since the date of his 1993 incarceration." Appellant's brief at page 8. The appellant argued at trial that the Department of Corrections has incorrectly calculated his minimum release date in that his minimum release date was scheduled for 7/96 and that now his minimum release date is scheduled for 1/97 with no explanation. He specifically requests that all time from "1986 until 1993 until 1995 be retroactive back to me [sic], and all my time served go toward my minimum release date." Appellant's brief at page 4 quoting C.R. 3. The claim that the appellant was entitled to retroactive good time was specifically abandoned on appeal. He argues on appeal that the record does not affirmatively prove that the DOC did not make a mathematical error computing his release date. This specific issue was not presented to the trial court in the appellant's "Motion to Refute" and is therefore precluded from appellate review. McKinney, supra.

Regardless of the procedural bar, we note that under § 14-9-41(g)(2), Ala.Code 1975, the commencement of the 10-year sentence, i.e., April 20, 1993, is the starting point for computing the appellant's remaining sentence. Because this sentence ran concurrently with the 15-year sentence and because the expiration date of the April 20, 1993, sentence was beyond the expiration date of the 15-year sentence, the sentence imposed on April 20, 1993, in essence caused the 15-year sentence to cease to exist, and the appellant no longer benefitted from any good time he may have acquired on the 15-year sentence. Henley v. Johnson, 885 F.2d 790, 793-94 (11th Cir.1989) (prisoner in Alabama prison petitioned for a writ of habeas corpus alleging that "he [was] being illegally detained by virtue of an incorrectly computed Alabama State Board of Corrections Inmate Summary")....