No. 80-157
IN THE SUPREME COURT OF THE STATE OF MONTANA
1980
ROGER CRIST,
Respondent and appellant,
DAVID SEGNA and GARY L.
WEISSI
Petitioners and respondents.
Appeal from: District Court of the Third Judicial District,
In and for the County of Powell, The Honorable
Robert Boyd, Judge presiding.
Counsel of Record:
For Appellant:
Nick A. Rotering, Dept. of Institutions, Helena,
Montana
For Respondent:
Sullivan & Holland, Butte, Montana
Gary W. Gilbert, Havre, Montana
Submitted on Briefs: November 6, 1980
Decided: 3 - 1981
Filed: FEB 3 - 1981
6. ?
"A&.--
Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Roger Crist, as warden of Montana State Prison, appeals
from an order of the Third Judicial District Court, Powell
County, granting habeas corpus to prison inmates Gary Weiss
and David Segna. We affirm.
Segna and Weiss are currently serving sentences in
Montana State Prison. Each inmate was free on parole, and
was subsequently returned to prison for violating conditions
of parole. Neither man was credited with statutory good
time at any time during their parole periods.
The issues before this Court are: (1) may parolees be
credited with statutory good time while on parole; and (2)
is the crediting of such good time discretionary within the
Department of Institutions and the prison warden?
Both issues hinge on the correct interpretation of
section 53-30-105, MCA, and other related statutes. Section
53-30-105, MCA, provides in pertinent part:
"53-30-105. --allowance. (1) The
Good time
department of institutions shall adopt
ruies providing for the granting of good
time allowance for inmates employed in any
prison work or activity. The good time
allowance shall operate as a credit on his
sentence as imposed by the court, conditioned
upon the inmate's good behavior and compliance
with the rules made by the department or the
warden. The rules adopted by the department
may not grant good time allowance to exceed:
" (b) 13 days per month for those inmates
placed outside the confines of the walls of
the prison;
" (c) 15 days per month for those inmates who
have been assigned outside the walls of the
prison for an uninterrupted period of 1 year
on a minimum status;
"(3) This section applies to all persons
who are on probation or parole or eligible
to be placed on probation or parole. No
person convicted and sentenced before April
1, 1955, shall have his good time allowance
reduced as a result of this section."
Appellant argues that prison officials have refused to
credit parolees with good time based on this Court's holdings
in Petition of McIlhargey (1970), 154 Mont. 510, 463 P.2d
476 and Hill v. State (1961), 139 Mont. 407, 365 P.2d 44.
In McIlhargey, we stated: "[Tlhe credit of good time is to
be granted only to a 'convict confined in the state prison.'"
154 Mont. at 511, 463 P.2d at 476. Appellant asserts that
under Hill, section 53-30-105(3) acts only as a savings
clause applicable for inmates convicted prior to April 1,
Appellant's reliance on both McIlhargey and Hill is
misplaced in this instance. -
The cited language from Mc-
Ilhargey is a recitation of the provisions of section 80-
739, R.C.M. 1947, which was repealed in 1955. Hill held
that the language of section 80-740, R.C.M. 1947, acted as a
savings clause. When that section was repealed in favor of
the predecessor of present section 53-30-105, MCA, the
savings clause was retained as the second sentence of sub-
paragraph (3). The first sentence of that subparagraph,
with which we are here concerned, was first adopted in 1965
and was not addressed by either McIlhargey or Hill. Both
cases are therefore clearly inapposite.
We find a number of rules of statutory construction
applicable in our resolution of the issues at bar. Legis-
lative intent must first be determined from the plain meaning
of the words used; and if the language is plain, unambiguous,
direct and certain, the statute speaks for itself. Dunphy
v. Anaconda Company (19681, 151 Mont. 76, 438 P.2d 660. All
provisions of a statute shall be given effect, if possible.
Corwin v. Beiswanger (19521, 126 Mont. 337, 251 P.2d 252.
This Court presumes that the legislature would not pass
meaningless legislation; and must harmonize statutes relating
to the same subject, giving effect to each. State ex rel.
City of Townsend v. D. A. Davidson, Inc. (1975), 166 Mont.
104, 531 P.2d 370. Finally, we presume that the legislature,
in repealing an old law and adopting a new statute, intended
to make some change. The courts shall endeavor to give some
effect to that change. Mitchell v. Banking Corporation of
Montana (1933), 95 Mont. 23, 24 P.2d 124.
Section 53-30-105(1), MCA, plainly provides good time
shall operate as a credit on an inmate's term; and section
53-30-105 (3) plainly applies that credit to persons on
probation or parole. Section 46-23-216(1), MCA, similarly
allows good time as credit against a parolee's maximum term.
The provisions of these sections can only be given meaning-
ful, harmonious effect if construed literally according to
their plain meanings. his conclusion is buttressed by the
manifest legislative intent underlying the passage of Chapter
199, Laws of 1965. That legislation repealed language codified
in section 80-740, R.C.M. 1947 (apparently denying good time
to parolees), and adopted the language now codified as the
first sentence of section 53-30-105 (3) , ! A
=.
Appellant next asserts that notwithstanding the avail-
ability of good time credit, it is within the discretion of
the warden and the Department to actually allow such credits.
Section 53-30-105(1), MCA, bestows upon prison officials
discretion to determine the individual prisoner's good
behavior and compliance with the rules. See, Seadin v.
Crist (1980), Mont. -, 608 P.2d 1094, 37 St.Rep. 953.
It does not extend prison officials unfettered discretion
to deprive statutory good time to an entire otherwise eligible
class of prisoners. Nor may we construe such wide-sweeping
discretion in the face of clear legislative intent to the
contrary.
Prisoners on parole remain in the legal custody of the
prison, section 46-23-215(1), MCA, and are assigned outside
the walls of the prison. They are thereby eligible for
statutory good time pursuant to sections 53-30-105(1) (b) and
(c), MCA. The discretion to disallow or forfeit an eligible
parolee's good time credit is, as with all other prisoners
eligible to receive good time, specifically limited to the
determination of good behavior and rules compliance.
In neither instance was there an individual deter-
mination by the warden that the prisoner was not entitled to
good time during parole, based on behavior and rules compliance.
In neither instance did the warden take action pursuant to
section 53-30-105 (2), MCA, to forfeit any good time allowance.
We therefore conclude that if either respondents' maximum
term of sentence, less all good time earned in prison or
while on parole, has expired, that respondent is entitled to
release.
Affirmed.
Justice
We Concur:
Chief Justice
This cause w a s submitted prior t o January 5 , 1981.