Dissenting Opinion
Hunter, J.A careful review of the petition for rehearing in this case has led me to believe we must reconsider our earlier decision. The issue here involved is the proper manner of computing the accumulation of good time under the Good-time Statute for the Indiana State Prison. Ind. Ann. Stat. § 13-511 and 512.
In the case at hand appellant was sentenced October 21,1968, for a one year term. On February 12, 1969, he committed a prison rule infraction which caused his loss of accumulated good time. Since he had at the date of the offense sixteen (16) days accrued this is what he lost. In our opinion of March 17, 1971, we held that after February 12, 1969, the date of the offense, he again began to build up good time credit. Where I believe we erred is in computing his rate of accumulation as though he were in the first month of his sentence, that is, at a rate of three days for the first month, etc. The statute (§ 10-512) does not provide for such a change in the accumulation rate in addition to the loss of the accumulated time. Rather, appellant should have begun to accumulate at the third month rate of five days per month.
As I read the statute the language
“. . . shall have the power to deprive such prisoner of any portion or all of the good time gained.”
allows only a taking of the days built up until then and not also of the rate of build up of future time.
The majority opinion states: “The one year sentence theoretically would terminate on October 21, 1969”, that is, if all of the time served in the institution was “bad time” as distinguished from “good time”. I believe the court is in error when, under the schedule set forth therein it allows good time beginning March 12, 1969, at three days, and by so doing places the defendant in the position of accruing good time only at the same rate beginning March 12th as if that was the first *189day of his first month of confinement. It appears that by so doing the court has judicially legislated into the “good time” statute the provision that when any time is taken away from an inmate as diminution of his sentence that he automatically then starts to accrue “good time” as if he were in the first month of his sentence. It is apparent that such an interpretation is judicial legislation and is writing a provision into the good time statute which the Indiana General Assembly did not see fit to do.
For all the foregoing reasons I would grant rehearing and affirm the judgment of the trial court.
Note. — Reported in 267 N. E. 2d 382.