Tittle v. State

• Decision Date: 20 August 1991
• Docket Number: CA-CV,No. 1,1
• Citation: 816 P.2d 267,169 Ariz. 8
• Parties: Thomas Boyd TITTLE, Plaintiff-Appellant, v. STATE of Arizona, a body politic; Arizona Department of Corrections, an agency of the State of Arizona; and Samuel A. Lewis, Director, Arizona Department of Corrections, Defendants-Appellees. 90-206.
• Court: Arizona Court of Appeals

Page 267

816 P.2d 267

169 Ariz. 8

Thomas Boyd TITTLE, Plaintiff-Appellant, v. STATE of Arizona, a body politic; Arizona Department of Corrections, an agency of the State of Arizona; and Samuel A. Lewis, Director, Arizona Department of Corrections, Defendants-Appellees.

No. 1 CA-CV 90-206.

Court of Appeals of Arizona,

Division 1, Department D.

Aug. 20, 1991.

Thomas Boyd Tittle, in pro. per.

Grant Woods, Atty. Gen. by Lynne W. Abney, Asst. Atty. Gen., Phoenix, for defendants-appellees.

OPINION

VOSS, Judge.

The issue here is whether appellant, Thomas Boyd Tittle, whose conviction and death sentence were reversed and remanded on appeal, 147 Ariz. 339, 710 P.2d 449, is entitled to good time credit, if deserved, in addition to credit for time served, when he is resentenced for a crime under which he could have received good time credit. We hold that Tittle is entitled to good time credits, if deserved, for the time spent on death row because the death sentence is now a nullity and he would have been eligible for good time credits had there been no trial court error.

The trial court, relying on the Arizona Administrative Code, section R5-1-402(C)(6), which disallows good time credit for death row inmates, held that Tittle was not entitled to receive good time credits for the time he spent on death row. Tittle seeks review of the trial court's decision.

On review of a trial court's denial of special action relief, we must uphold the trial court's action if there is a valid reason for such action. Armstrong v. City Court of the City of Scottsdale, 118 Ariz. 593, 578 P.2d 1022 (App.1978). We find no valid reason for the trial court's actions and remand with instructions.

Tittle was convicted of first degree murder and of armed robbery and was sentenced to death for the murder conviction. Pending his appeal he was imprisoned for 1,974 days. The Arizona Supreme Court reversed his murder conviction because the jury received an incorrect self-defense instruction. Tittle then pled guilty or was retried, the record is unclear, and was convicted of second degree murder and robbery. At sentencing the trial court gave him credit for the 1,974 days he spent on death row.

Tittle argues that he should have received an additional 459 days of credit, which represents the good time credit he would have received had he initially been convicted of second degree murder and fulfilled the DOC requirements for eligibility to receive good time credit. Citing McKellar v. Arizona State Department of Corrections, 115 Ariz. 591, 566 P.2d 1337 (1977) and State v. Davis, 148 Ariz. 62, 712 P.2d 975 (App.1985), Tittle asserts that an error by the state, in this case a trial court error, cannot work to his detriment in the calculation of his release date. He also maintains that A.R.S. § 13-709(C), which provides that a defendant shall receive credit for all time served under a vacated sentence when he or she is resentenced for the same offense, entitles him to good time credit.

Appellee, the State of Arizona, argues that Tittle is not eligible for good time credits because he was a death row inmate and pursuant to A.A.C. R5-1-402(C)(6), those inmates are ineligible for good time credits. The state also argues that A.A.C. R5-1-403(G), which provides that once a sentence of death is modified, the inmate is processed through normal initial parole classification procedures, prevents Tittle from receiving retroactive good time credits because the code section, by its terms, requires that Tittle be initially classified upon modification of his death sentence. The state maintains that McKellar and Davis are inapposite because in the present case there was no computational error by the state or failure by Arizona authorities to act on a detainer.

The state also contends that section 13-709(C) is inapplicable because Tittle was not serving a sentence of imprisonment but rather a death sentence and because he was not charged with the same offense, his new conviction being for second degree murder. The state further maintains that in any event DOC complied with section 13-709(C) because Tittle received credit for all time served under the vacated sentence and nothing in that section requires that he also receive retroactive good time credits.

We agree with Tittle. First, we find that section 13-709(C) is applicable. It provides:

C. If a sentence of imprisonment is vacated and a new sentence is imposed on the defendant for the same offense, the new sentence is calculated as if it had commenced at the time the vacated sentence was imposed, and all time served under the vacated sentence shall be credited against the new sentence.

A statute must be read so as to give it a fair and sensible meaning. State v. Garza Rodriguez, 164 Ariz. 107, 791 P.2d 633 (1990). If possible, we must give meaning to each statutory clause and consider effects and consequences as well as the spirit and purpose of the law. Id. A pragmatic construction of a statute is required if a technical construction would lead to absurdity. State v. Weible, 142 Ariz. 113, 688 P.2d 1005 (1984).

The state's interpretation of the statute is too restrictive and logically inconsistent. Regardless of the classification of the crime for which Tittle was serving a sentence, he was serving a sentence of imprisonment. To argue that he was not is to ignore where he was incarcerated pending his appeal or the imposition of death. Furthermore, although the statute refers to credit given after a...