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09/09/94 SAMUEL LABARRON PARKER v. STATE

September 9, 1994

SAMUEL LABARRON PARKER
v.
STATE



Appeal from Mobile Circuit Court. CC-91-367.71. Douglas Johnstone, TRIAL JUDGE.

Released for Publication January 23, 1995.

Bowen

The opinion of the court was delivered by: Bowen

BOWEN, PRESIDING JUDGE

This is an appeal from a revocation of probation. The appellant, Samuel Labarron Parker, contends that the circuit court was without authority to increase his term of confinement in the penitentiary upon the revocation of his probation.

In 1991, the appellant pleaded guilty to and was convicted of, possession of a forged instrument in the second degree. His sentence of five years' imprisonment was suspended and he was placed on probation. In February 1994, the appellant was arrested on a charge of kidnapping. His probation was revoked in March 1994, based on evidence that he had committed a kidnapping and a burglary. After revoking his probation, the circuit court ordered the appellant to serve a "split" sentence on his 1991 possession case.

The circuit Judge stated:

"This defendant's probation is revoked and I am going to split -- He has got a five-year sentence he is supposed to do and he really should do every minute of it, a year for year, day for day. The problem is that under the rules that the Director of the Department of Corrections has, if I give him this five-year straight time, he will be out before you can say 'Jack Robinson.' But I think if I split this sentence and order him to serve three years of it, I believe the law is he has got to serve all those three years at least unless the Director of the Department of Corrections has found some way out of that law. So, that is what I am going to do." R. 18.

In response, defense counsel stated: "Just for the record, I realize this is within your authority, but I would like to put in an objection for the record." R. 18. Although a motion for a new trial was made, that motion is not contained in the record on appeal.

Initially, we note that this issue appears to have been waived. Even though defense counsel objected to the appellant's sentence, he expressly admitted that the Judge's action in setting the sentence was within the "authority" of the trial court. Furthermore, even assuming that the issue had been preserved for review, we find no error in the sentence imposed.

The appellant contends that if the trial court had imposed the original five-year sentence, he would have been released from prison in two years with the application of "good time." Ala. Code 1975, §§ 14-9-40 through -44. This argument, however, is based on speculation, because there is no guarantee that the appellant would "faithfully observe" the prison rules and regulations during his period of confinement so as to meet the requirements for the application of good time. See § 14-9-41(a). Furthermore, an inmate has no protected interest in "good time." See Conlogue v. Shinbaum, 949 F.2d 378, 380 (11th Cir. 1991), cert. denied, ___ U.S. ___, 113 S.Ct. 123, 121 L.Ed.2d 79 (1992); Gullett v. State, 613 So.2d 400, 401 (Ala.Cr.App. 1992).

The appellant relies on the distinction between the terms "confinement" and "sentence of imprisonment" made by this Court in Cox v. State, 548 So.2d 1099 (Ala.Cr.App. 1989). In Cox, this Court held that a defendant who had been sentenced to 10 years' and 12 years' imprisonment was not entitled to good time under a statute that provided no correctional incentive time ("good time") for a person who received a sentence of 10 years or more, even though the defendant's sentences were "split" and the defendant was ordered to serve three years' and two years' imprisonment.

"'Contrary to the petitioner's implication, the terms "sentence of imprisonment in the penitentiary" and "confinement," as used in the Split Sentence and ACIT [good time] Acts, are not interchangeable. As ยงยง 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 ...


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