State ex rel. Ivey v. Meadows

• Decision Date: 10 September 1965
• Citation: 216 Tenn. 678,393 S.W.2d 744,20 McCanless 678
• Parties: STATE of Tennessee ex rel. A. R. IVEY, Plaintiff-in-Error, v. J. E. MEADOWS, Warden, Tennessee State Penitentiary, Defendant-in-Error. 20 McCanless 678, 216 Tenn. 678, 393 S.W.2d 744
• Court: Tennessee Supreme Court

Page 744

393 S.W.2d 744

STATE of Tennessee ex rel. A. R. IVEY, Plaintiff-in-Error, v. J. E. MEADOWS, Warden, Tennessee State Penitentiary Defendant-in-Error.

20 McCanless 678, 216 Tenn. 678, 393 S.W.2d 744

Supreme Court of Tennessee.

Sept. 10, 1965.

Henry, McCord, Forrester & Richardson, Doyle E. Richardson, Tullahoma, for plaintiff in error.

George F. McCanless, Atty. Gen., Thomas E. Fox, Asst. Atty. Gen., Nashville, for defendant in error.

CHATTIN, Justice.

This is a habeas corpus proceeding. The plaintiff-in-error, A. R. Ivey, hereinafter referred to as petitioner, was tried and convicted of murder in the first degree and sentenced to confinement in the State Penitentiary for a period of ninety-nine years. Pending an appeal of the conviction, he was confined for a period of eighteen months and eighteen days in the State Penitentiary.

This Court reversed the first conviction and remanded the case for a new trial. Ivey v. State, 210 Tenn. 422, 360 S.W.2d 1 (1962).

In December 1962, petitioner was again tried and convicted of involuntary manslaughter and sentenced to confinement in the penitentiary for a term of not more than five years. He commenced serving that sentence on January 3, 1963.

Counsel for petitioner seasonably moved the trial judge, after the second conviction, to allow the petitioner credit on his sentence for time he was confined in jail awaiting his first trial and also the time which he spent in the State Penitentiary pending the appeal of his first conviction. The trial judge overruled this motion and ordered his sentence to commence as of January 3, 1963.

On August 26, 1964, petitioner filed this petition in the Circuit Court of Davidson County in which he set forth the foregoing facts, together with the insistence he was, as a matter of law, entitled to be released from the penitentiary.

Specifically, petitioner insisted in his petition for the writ of habeas corpus he had served nineteen months and thirteen days of his second sentence as of August 16, 1964; which, when added to the eighteen months and eighteen days he had spent in the penitentiary pending the appeal of his first conviction, totaled thirty-eight months; and that by reason of his total confinement in the penitentiary he had earned a total of twenty-two months credit for good behavior and honor time, which, when added to the thirty-eight months of confinement, would amount to five years, his maximum sentence.

It is said in support of this insistence that credit for time served in the penitentiary and good conduct and honor time earned thereby, is now and was always mandatory; and thus petitioner has served his maximum sentence and his further restraint is unlawful.

T.C.A. Section 41-332 provides:

'Each convict who shall demean himself uprightly shall have deducted from the time for which he may have been sentenced, one (1) month for the first year, two (2) months for the second year, three (3) months for each subsequent year until the tenth year inclusive and four (4) months for each remaining year of the time of imprisonment. This shall apply to prisoners in confinement or on parole therefrom.'

T.C.A. Section 41-334 provides the Commissioner of Institutions shall have the right and power to establish an honor grade in which convicts shall be placed when received at the penitentiary and so long as any prisoner who is placed on the honor grade remains in prison, he shall, in addition to good behavior time allowed him by T.C.A. Section 41-332, have deducted from the time for which he may have been sentenced two months for each year of his term of imprisonment or the fractional part thereof.

It is further said for petitioner that as a matter of law he was entitled to credit for the eighteen months and eighteen days spent in the penitentiary pending the appeal of his first conviction and also credit for good behavior and honor time earned thereby; and, thus, the judgment of the trial court in disallowing his motion for these credits on his sentence was void in that respect.

The petition for the writ of habeas corpus was heard upon a stipulation of facts, certain exhibits filed to the petition, briefs and oral arguments of Counsel for the respective parties.

The stipulation of facts contains the following paragraph:

'During both of his periods of confinement in the State Penitentiary, the petitioner, was a model prisoner and, if otherwise entitled, he earned all of the good time and honor credits allowed by law, in that he was guilty of no misconduct and no infraction of the Penitentiary rules.'

While it is true specific credits provided by statute for good conduct of a defendant sentenced to the penitentiary enter into the judgment, 'and inheres into the punishment assessed;' Gilliam v. State, 174 Tenn. 388, 126 S.W.2d 305 (1939); Fite v. State ex rel. Snider, 114 Tenn. 646, 88 S.W. 941, 1 L.R.A.,N.S., 520 (1905); yet we think the matter of allowing credit for the time petitioner served in the penitentiary pending the appeal of his first conviction was discretionary with the trial court on his second conviction and this Court cannot review the action of the trial court in refusing petitioner credit on his second sentence, except on appeal or writ of error therefrom.

T.C.A. Section 40-3102 was amended by the Acts of 1955 and 1959, and prior to the amendment by the Act of 1963, the amendments read, as follows:

'The trial court shall have authority at the time the sentence is imposed and the defendant committed to the state penitentiary for imprisonment to render the judgment of the court so as to allow the defendant credit on his sentence for any period of time for which he was committed and held in the county jail or workhouse pending his arraignment and trial.

'In the event the person sentenced...