Thomas v. State, 8 Div. 180

• Decision Date: 24 February 1989
• Docket Number: 8 Div. 180
• Citation: 552 So.2d 875
• Parties: Sedrick Lavonne THOMAS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 875

552 So.2d 875

Sedrick Lavonne THOMAS v. STATE.

8 Div. 180.

Court of Criminal Appeals of Alabama.

Feb. 24, 1989.

Rehearing Denied March 31, 1989.

James D. Moffatt, Athens, for appellant.

Don Siegelman, Atty. Gen., and James B. Prude, Asst. Atty. Gen., for appellee.

BOWEN, Judge.

This is an appeal from the denial of a petition for writ of habeas corpus in which the petitioner claims that he is entitled to incentive good time credit.

In his petition, Thomas alleges that, on February 27, 1987, he was sentenced to 15 years' imprisonment for robbery. That sentence was "split" with 3 years to be served in the penitentiary and 5 years on probation. He maintains that he is entitled to good time under the Alabama Correctional Incentive Time Act (ACIT Act). Alabama Code 1975, § 14-9-40 through § 14-9-44. We disagree.

Alabama Code 1975, § 15-18-8(a)(1), authorizes a sentencing judge to "split" a defendant's sentence:

"(a) When a defendant is convicted of an offense and receives a sentence of 15 years or less ... the judge presiding ... may order:

"(1) That the convicted defendant be confined in prison ... for a period not exceeding three years and that the execution of the remainder of the sentence be suspended and the defendant be placed on probation for such period and upon such terms as the court deems best, ..."

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"(g) No defendant serving a minimum period of confinement ordered under the provisions of subsection (a) shall be entitled to deductions from his sentence under the Alabama Correctional Incentive Time Act, during the minimum period of confinement so ordered; provided, however, that this subsection shall not be construed to prohibit application of the Alabama Correctional Incentive Time Act to any period of confinement which may be required after the defendant has served such minimum period."

Since the petitioner received a sentence of 10 or more years, he is not entitled to CIT, even though that sentence was split so that he has only 3 years' confinement.

The Alabama Correctional Incentive Time Act authorizes "good time" and is found in Alabama Code 1975, § 14-9-40 through § 14-9-44. Section 14-9-41 provides in pertinent part:

"(a) Each prisoner who shall hereafter be convicted of any offense against the laws of the state of Alabama and is confined, in execution of the judgment or sentence upon any conviction, in the penitentiary or at hard labor for the county or in any municipal jail for a definite or indeterminate term, other than for life, whose record of conduct shows that he has faithfully observed the rules for a period of time to be specified by this article may be entitled to earn a deduction from the term of his sentence ..."

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"(e) Provided, however, no person may receive the benefits of correctional incentive time if he or she has been convicted of a Class A felony or has been sentenced to life, or death, or who has received a sentence for 10 years or more in the state penitentiary ..."

Thomas argues that § 14-9-41 entitles a prisoner to receive good time credit so long as his sentence to actual incarceration does not exceed 10 years. We disagree.

Section 14-9-41(e) specifically excepts from eligibility for good time any person "who has received a sentence for 10 years or more in the state penitentiary." The petitioner construes the phrase "a sentence for 10 years or more in the state penitentiary" to mean a sentence of 10 years' actual confinement in the penitentiary.

The petitioner's construction of § 14-9-41(e) is at odds with the legal meaning of the phrase "sentence of imprisonment in the state penitentiary," and with the legislative intent of the ACIT Act.

Alabama Code 1975, § 13A-5-6, states that "sentences for felonies shall be for a definite term of imprisonment...." (Emphasis added.) Section 13A-5-8 states that "[t]he place of imprisonment for sentences imposed in this state shall be as established elsewhere by law." Section 15-18-1(a), Code of Alabama 1975, provides the following:

"The only legal punishments, besides removal from office and disqualification to hold office, are fines, hard labor for the county, imprisonment in the county jail, imprisonment in the penitentiary, which includes hard labor for the state, and death by electrocution." (Emphasis added.)

"Section 15-18-1, which specifies legal punishments and where they are to be served is still law...." Alabama Code, §§ 13A-5-6 through 13A-5-8 (Commentary at 106).

The legal punishment the petitioner received in this case was 15 years' imprisonment in the penitentiary. The fact that the trial judge split the petitioner's sentence and ordered him to be confined for only 3 years with the execution of the 12 years remaining on his sentence suspended does not change his sentence to one of only 3 years' imprisonment. The petitioner still received a sentence of 15 years' imprisonment in the penitentiary despite the fact that the execution of 12 years of that sentence has been conditionally suspended.

Contrary to the petitioner's implication, the terms "sentence of imprisonment in the penitentiary" and "confinement," as used in the Split Sentence and ACIT Acts, are not interchangeable. As §§ 13A-5-6 and 15-18-1 make it clear, all legal sentences for felonies are sentences to "imprisonment in the penitentiary." The fact that some sentences "to imprisonment" may be suspended or probated relates only to the terms of their execution and not to their basic definitional nature as sentences to imprisonment in the penitentiary.

The petitioner assumes that a 15-year sentence, split into a 3-year term of confinement and a 12-year term of probation, is only a 3-year sentence of imprisonment and a 12-year sentence of non-imprisonment. The fact that the entire sentence is one "of imprisonment," albeit probated, however, is made clear by the specific wording of the Split Sentence Act. Section 15-18-8(a) provides that a sentence may be split only after "a defendant is convicted of an offense and receives a sentence of 15 years or less." (Emphasis added.) Section 15-18-8(b) provides:

"Probation may be granted whether the offense is punishable by both fine and imprisonment or both. If an offense is punishable by both fine and imprisonment, the court may impose a fine and place the defendant on probation as to imprisonment...."

The emphasized portions of § 15-18-8 indicate the legislature's understanding that a sentence does not lose its definitional quality as one "of imprisonment" even though it has been split, suspended, or probated.

The terms "confinement" and "sentence of imprisonment" are not synonymous....