State v. Barnard, 1
| Decision Date | 03 April 1980 |
| Docket Number | CA-CR,No. 1,1 |
| Citation | 126 Ariz. 110,612 P.2d 1073 |
| Parties | STATE of Arizona, Respondent, v. Gary Hartwell BARNARD, Petitioner. 4108-PR. |
| Court | Arizona Court of Appeals |
Petitioner Gary Hartwell Barnard pleaded guilty to the crime of child molesting. He was sentenced on June 27, 1978, to a term in the Arizona State Prison of not less than two nor more than three years. The statute under which petitioner was sentenced, A.R.S. § 13-653, 1 prohibits deduction of good behavior or double time credits until he has served one year:
A person who molests a child under the age of fifteen years by fondling, playing with, or touching the private parts of such child or who causes a child under the age of fifteen years to fondle, play with, or touch the private parts of such person shall be guilty of a felony punishable by imprisonment in the state prison for not less than one year nor more than life without the possibility of parole until the minimum sentence has been served. In no event shall a person who is convicted under the terms of this section be entitled to the good behavior deduction and the double time deduction prescribed by the provisions of subsection B of § 31-251 and subsection A of § 31-252 until he has served at least one year. (emphasis added)
According to the testimony at the hearing on the petition for post-conviction relief, the Arizona Department of Corrections is not crediting petitioner with any good behavior or double time credits during the first year of his sentence. The Department's position is based upon its interpretation of A.R.S. § 13-653.
Petitioner concedes that he must complete one year regardless of any credits before he may be released from custody, but argues that A.R.S. § 13-653 does not prohibit the accumulation of these credits during the first year so that they may be applied after the mandatory one-year period has expired, the credits to be applied to his maximum sentence of three years.
Petitioner is correct in his assertion that both the credit for good behavior and the double time credit are matters of statutory right. See Watson v. Industrial Commission, 100 Ariz. 327, 414 P.2d 144 (1966). But this right accrues only to the extent that the legislature has granted it. The question, then, is not whether petitioner is entitled to these credits but rather when these credits begin to accrue to reduce his sentence.
Watson v. Industrial Commission, supra, and State v. Rice, 110 Ariz. 210, 516 P.2d 1222 (1973) relied upon by petitioner are inapposite. Watson, insofar as is relevant here, merely holds that the good behavior and double time credits granted by A.R.S. §§ 31-251 and 31-252 are matters of statutory right, while Rice does not examine at all the question whether, under A.R.S. § 13-653, the good behavior and double time credits may be deducted during the first year.
The fundamental rule in statutory interpretation is to ascertain and give effect to the intention of the legislature. In the Matter of the Estate of Beaman, 119 Ariz. 614, 583 P.2d 270 (1978). At the outset, we note that A.R.S. § 13-653, while clear in its requirement that a defendant sentenced under the statute must spend at least one year in custody regardless of credits which might otherwise have been available, is not definite on the question raised by petitioner. We may, therefore, look to the legislative history of the statute for guidance.
Successive drafts of the same act are instructive in determining the intent of the legislature, as the substitution or elimination of provisions necessarily involves an element of intent by the drafters. See Landis, "A Note on 'Statutory Interpretation' ", 43 Harv.L.Rev. 886 (1930). A.R.S. § 13-653 was introduced in 1965 as a part of Senate Bill 48 which dealt with crimes against children. The original version of the act did not contain the one-year period within which the good behavior...
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