Whited v. Bolin

• Decision Date: 25 November 1981
• Docket Number: No. 43944,43944
• Citation: 210 Neb. 32,312 N.W.2d 691
• Court: Nebraska Supreme Court
• Parties: Robert Eugene WHITED, Appellant, v. Jerry J. BOLIN et al., Appellees.

Page 691

312 N.W.2d 691

210 Neb. 32

Robert Eugene WHITED, Appellant, v. Jerry J. BOLIN et al., Appellees.

No. 43944.

Supreme Court of Nebraska.

Nov. 25, 1981.

Syllabus by the Court

1. Board of Pardons: Statutes: Sentences. Approval of the Board of Pardons to apply 1975 Neb.Laws, L.B. 567, retroactively is required only where the changes in L.B. 567 would result in discharge of the petitioner from custody at an earlier date than under the law in effect prior to L.B. 567.

2. Board of Pardons: Statutes: Sentence. Where a petitioner, under a sentence imposed prior to August 24, 1975, has been granted good time credits which remain unforfeited, sufficient under prior law to require his mandatory release from the custody of the Department of Correctional Services under supervision on the same date or prior to the date when his discharge from the custody of the state would have become mandatory under the provisions of 1975 Neb.Laws, L.B. 567, consent of the Board of Pardons is not required to apply the provisions of L.B. 567 retroactively.

3. Statutes: Sentences. The provisions of Neb.Rev.Stat. § 83-1,110(2) (Reissue 1976) are to be applied to consecutive sentences whether imposed before or after the effective date of 1975 Neb.Laws, L.B. 567.

Dennis R. Keefe, Lancaster County Public Defender, and Richard L. Goos, Lincoln, for appellant.

Paul L. Douglas, Atty. Gen., and J. Kirk Brown, Lincoln, for appellees.

Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, BRODKEY, WHITE and HASTINGS, JJ.

McCOWN, Justice.

This is a habeas corpus proceeding in which the petitioner sought immediate release from penal custody of the State of Nebraska. The District Court dismissed the petition and this appeal followed.

In January 1967 the petitioner commenced serving a 10-year sentence for burglary in the custody of the Department of Correctional Services. On February 1, 1973, the petitioner was sentenced to a term of not less than 3 nor more than 10 years for burglary, to be served consecutively to the 1967 sentence. The first sentence was terminated by the state on August 19, 1973, and on that date petitioner began serving the second term.

In 1975, L.B. 567 became effective. L.B. 567 made changes in the application of "good time" and "good behavior" good time credits, both for purposes of determining eligibility for release on parole and for purposes of determining the time of mandatory discharge from custody.

On September 13, 1978, the petitioner was granted a discretionary parole. On November 18, 1978, petitioner was convicted and fined in the municipal court of Lincoln, Nebraska, on a charge of refusing a breath test. It is stipulated that on December 13, 1978, the Board of Pardons denied the petitioner the application of good time benefits under L.B. 567. The petitioner did not receive prior notification of the board meeting, nor have any opportunity to be heard. On December 19, 1978, petitioner's discretionary parole was revoked and he has remained in custody.

Petitioner's habeas corpus petition was filed on July 20, 1979. The petition alleged that he had been denied his statutory rights to good behavior good time credits in violation of law and had also been denied his constitutional right to due process and equal protection of the law. He alleged that he was entitled to immediate release from custody. The State's response alleged that the petitioner had violated a discretionary parole within 12 months of the date when his parole would otherwise have been mandatory and that the petitioner was not entitled to the retroactive application of 1975 Neb.Laws, L.B. 567.

On September 10, 1980, the District Court found that Johnson & Cunningham v. Exon, 199 Neb. 154, 256 N.W.2d 869 (1977), requires the approval of the Board of Pardons before an inmate may enjoy "the more liberal good time benefits afforded by LB 567," and also found that as to the action of the Board of Pardons petitioner's right to due process of law had not been violated, and dismissed his petition.

In Johnson & Cunningham v. Exon, supra, this court determined that where petitioners became eligible for earlier discharge under L.B. 567 than would have resulted under laws existing at the time of sentencing, approval of the Board of Pardons was required before the provisions of L.B. 567 could be applied retroactively. The basis for the holding was that an earlier discharge constituted a form of clemency or commutation of sentence which only the Board of Pardons had the power to exercise.

In Gochenour v. Bolin, 208 Neb. 444, 303 N.W.2d 775 (1981), this court held that approval of the Board of Pardons to apply L.B. 567 retroactively is required only where the changes in L.B. 567 would result in discharge of the prisoner from custody at an earlier date than under the law in effect prior to L.B. 567.

At this point it is necessary to point out that since 1969 the maximum amounts of "good time" allowances and of "meritorious" or "faithful performance" good time allowances have been exactly the same, except that L.B. 567 provided that an offender "shall receive, for faithful performance of his assigned duties," 5 days for each month of his term, while prior law provided that an offender may receive a reduction not to exceed 5 days for any month of imprisonment. (Emphasis supplied.) In the usual situation the amount of good time allowances is the same under L.B. 567 and prior law, and has been since 1969.

The only essential difference in the usual case is that L.B. 567 requires the good time reductions to be deducted from the maximum term to determine the date when the prisoner's discharge from the custody of the state becomes mandatory, while prior law requires such reductions to be deducted from the maximum term to determine the date when the prisoner's release under supervision becomes mandatory. In the usual case the prisoner is required to be discharged from custodial confinement at the same time under...