414 P.2d 157

#### Application of Joe Fragosa for a Writ of Habeas Corpus. Joe FRAGOSA, Petitioner, v. Frank A. EYMAN, Warden, et al., Arizona State Prison, Respondent.

No. 2 CA-HC 28.

Court of Appeals of Arizona.

May 13, 1966.

Joe Fragosa, in pro. per.

Darrell F. Smith, Atty. Gen., for respondent.

KRUCKER, Chief Judge.

Petitioner, Joe Fragosa, having filed a motion for rehearing from the denial of his petition for a writ of habeas corpus, raises the question of interpretation and application of A.R.S. § 31-251. This statute provides in part:

> “B. Every prisoner faithfully performing such labor and conforming in all respects to the rules, or if unable to work, but complying in all respects to the rules, shall be allowed, if a first offender, from the minimum term of his sentence, or, if a second offender or more, from the maximum term of his sentence, a deduction of two months in each of the first two years, four months in each of the next two years, and five months in each of the remaining years of the term.”

There is no dispute as to the time the appellant has actually served or the statutory time allowed for good behavior under the provisions of A.R.S. § 31-251, or under A.R.S. § 31-252 allowing double time for labor, but only as to the administrative application of the statutory time to be allowed. Petitioner claims that the five months allowable on his fifth year should be prorated by the prison administration, while the prison administration contends, as is their practice, that statutory time should be credited at the end of each given year served. This becomes important during the last year of a sentence, and pro rata credit for the statutory time will, in most cases, effect an earlier release date.

The late Justice Lockwood, in a most enlightening review of penal philosophy, stated in Orme v. Rogers, 32 Ariz. 502, 510, 260 P. 199, 201 (1927):

> “The period allowed for good conduct and certain details in the method of recording it were changed from time to time until the adoption of paragraph 2440, Civil Code of 1887, which was carried over as paragraph 3589, Civil Code of 1901, and paragraph 1448, Penal Code of 1913, substantially unchanged, but it was always based on obedience to the rules of discipline and not on a general moral reform, and was a matter of right and not of discretion.”

It is argued that statutory credit for “good time”, being a matter of right, is denied the prisoner in many cases during the last year of serving a sentence. However, we are governed by the holding expressed in Beaty v. Shute, 54 Ariz. 339, 343, 95 P.2d 563, 565 (1939), in which the Supreme Court of Arizona was confronted with the same issue presented here. The opinion, unaffected by subsequent decision, states:

> “We hold, therefore, that the good conduct time referred to in section 5318, supra, is to be credited to the prisoner *309at the end of each year, *as it is earned by his*behavior, and used finally when it, together with credits earned under section 5319, supra, added to the time already served, equals the maximum sentence.”

We have followed the above decision in our original ruling denying the writ of habeas corpus and hold that the statutory time should not be credited until the end of a given year.

The petition for rehearing is denied.

HATHAWAY and MOLLOY, JJ., concur.