The question here is one of statutory construction. The statutes in question relate to eligibility for parole by inmates.
Charles Joseph Poe was convicted of burglary and grand larceny in 1976 and is serving twenty-one years on those charges. He claims that the Department of Correction determined wrongfully that he is not eligible for parole.
He sued the Department of Correction in Jefferson County Circuit Court, seeking a writ of mandamus. Both parties filed for summary judgment and relied on the same law. If Poe’s interpretation of the law is correct he is entitled to be considered for parole after serving one-third of his time; if the Department of Correction is correct, he will not be eligible until he has served one-half of his time. The circuit court judge held for the Department and the same issue is now before us. We affirm the judgment.
Poe committed his crimes on December 29, 1975. He pled guilty and was sentenced on February 13, 1976. His sentencing took place two days after the General Assembly passed Act 1161 which related to eligibility for parole of individuals serving a term for years. Under Act 1161 an individual in Poe’s situation had to serve one-half of his time before being eligible for parole.
The next year the General Assembly passed Act 93 of 1977. The purpose of this Act was to “Establish the parole eligibility for persons convicted of committing a criminal offense after April 1, 1977.” However, Act 93 provided in Section 2 (A) that:
Persons who committed felonies prior to April 1, 1977, and were convicted and incarcerated for the same, shall be eligible for release on parole in accordance with the parole eligibility law in effect at the time such crime was committed. [Emphasis added.]
It is this section that Poe argues changed his status. Before he committed the crime on December 29, 1975, before Act 1161 was passed, he claims he is eligible for parole under the provisions of Act 94 of 1969. This would allow him to be eligible for parole after serving only one-third of his time. If Section 2(A) controls, he is right and that is not disputed.
In summary, everyone concedes Poe was legally sentenced under a law that requires him to serve one-half his time, but if Section 2(A) is read literally, Poe’s status was changed. Did the General Assembly intend that? This does not appear to be the intention of the General Assembly when you study both acts in their entirety, construe them together, and reconcile them if possible. Larey v. Wolfe, 242 Ark. 715, 416 S.W. 2d 266 (1967). This was not the intention if the statutes are to be given a common sense construction. Dozier v. Ragsdale, 186 Ark. 654, 55 S.W. 2d 779 (1932). Poe’s position might prevail if repeal by implication were a favorite of the law, but it is not. Shay v. Welch, 209 Ark. 519, 191 S.W. 2d 253 (1945).
Act 93 of 1977 was intended to apply to persons convicted after April 1, 1977. That was its purpose, as stated in the Title:
AN ACT to Establish the Parole Eligibility for Persons Convicted of Committing a Criminal Offense After April 1, 1977-, and for Other Purposes. [Emphasis added.]
The meat of the Act is contained in Section 2(B).
Persons who commit felonies on and after April 1, 1977, and shall be convicted and incarcerated for the same, shall be eligible for release on parole as follows:
It goes on to provide for terms which are more severe than those of previous acts for those persons who have prior convictions. The emergency clause says that the present laws do not adequately deter crime and that the habitual criminal should have his parole eligibility bear a direct relationship to the number of times he was convicted.
With those provisions in mind, we must determine whether the General Assembly intended to repeal Act 1161 as it was applied to Poe. He was legally sentenced under that law and knew he would have to serve one-half his time. Dio the General Assembly intend, in enacting a harsher law, for inmates already sentenced and serving to receive a lesser punishment?
That intent can only be reached by an approach using blinders, reading literally Section 2(A) and ignoring everything else. That approach can be used only if it is found that the acts cannot be reconciled. If the General Assembly intended to change the parole eligibility for those already convicted and serving a sentence, it would undoubtedly have said so.
Usually the parole laws applied are the ones that are in effect when a person is sentenced. Certainly a law could not be passed which would limit one’s right to parole after he had been sentenced since this would violate the ex post facto provision of the constitution. Davis v. Mabry, 266 Ark. 487, 585 S.W. 2d 949 (1979). But that is not the case with Poe. He is not prejudiced by our decision.
Affirmed.
Purtle, J., dissents.