Parker v. State
Decision Date | 09 September 1994 |
Citation | 648 So.2d 653 |
Parties | Samuel Labarron PARKER v. STATE. CR 93-995. |
Court | Alabama Court of Criminal Appeals |
John Grow II, Mobile, for appellant.
James H. Evans, Atty. Gen., and Jean Therkelsen, Asst. Atty. Gen., for appellee.
This is an appeal from a revocation of probation. The appellant, Samuel Labarron Parker, contends that the circuit court was without authority to increase his term of confinement in the penitentiary upon the revocation of his probation.
In 1991, the appellant pleaded guilty to and was convicted of, possession of a forged instrument in the second degree. His sentence of five years' imprisonment was suspended and he was placed on probation. In February 1994, the appellant was arrested on a charge of kidnapping. His probation was revoked in March 1994, based on evidence that he had committed a kidnapping and a burglary. After revoking his probation, the circuit court ordered the appellant to serve a "split" sentence on his 1991 possession case.
The circuit judge stated:
In response, defense counsel stated: "Just for the record, I realize this is within your authority, but I would like to put in an objection for the record." R. 18. Although a motion for a new trial was made, that motion is not contained in the record on appeal.
Initially, we note that this issue appears to have been waived. Even though defense counsel objected to the appellant's sentence, he expressly admitted that the judge's action in setting the sentence was within the "authority" of the trial court. Furthermore, even assuming that the issue had been preserved for review, we find no error in the sentence imposed.
The appellant contends that if the trial court had imposed the original five-year sentence, he would have been released from prison in two years with the application of "good time." Ala.Code 1975, §§ 14-9-40 through -44. This argument, however, is based on speculation, because there is no guarantee that the appellant would "faithfully observe" the prison rules and regulations during his period of confinement so as to meet the requirements for the application of good time. See § 14-9-41(a). Furthermore, an inmate has no protected interest in "good time." See Conlogue v. Shinbaum, 949 F.2d 378, 380 (11th Cir.1991), cert. denied, 506 U.S. 841, 113 S.Ct. 123, 121 L.Ed.2d 79 (1992); Gullett v. State, 613 So.2d 400, 401 (Ala.Cr.App.1992).
The appellant relies on the distinction between the terms "confinement" and "sentence of imprisonment" made by this Court in Cox v. State, 548 So.2d 1099 (Ala.Cr.App.1989). In Cox, this Court held that a defendant who had been sentenced to 10 years' and 12 years' imprisonment was not entitled to good time under a statute that provided no correctional incentive time ("good time") for a person who received a sentence of 10 years or more, even though the defendant's sentences were "split" and the defendant was ordered to serve three years' and two years' imprisonment.
Cox v. State, 548 So.2d 1099, 1101-02 (Ala.Cr.App.1989), (quoting Thomas v. State, 552 So.2d 875, 876-877 (Ala.Cr.App.1989), affirmed, 552 So.2d 878 (Ala.1989) (emphasis original in Thomas ).
However, a reading of Ala.Code 1975, § 15-22-54, makes it clear that the trial court did have the authority to "split" the appellant's original sentence on revocation of probation. Section 15-22-54(d), Ala.Code 1975, in pertinent part, provides:
Construed in the context, the sentence "[t]he total time spent in confinement may not exceed the term of confinement of the original sentence," clearly refers to the total time a defendant has spent in confinement--whether it be in full-time confinement in facilities such as county jail, state prison, and boot camp, or any "partial" confinement such as work release programs, intermittent confinement, and home detention, if awarded--and that such total time of confinement may not exceed the term of the defendant's original sentence. In other words, the length of a defendant's sentence (as...
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