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Duffy v. State3/21/1990
ntence below the minimum imposed by the court. That decision was based on the statutes and rules in effect at the time. The opinion quotes § 7-13-402(a), W.S. 1977, which provided:
"The Board shall have the power to grant a parole * * * to any person imprisoned in any institution under sentence ordered by any district court of this state, other than a life sentence, and who shall have served the minimum term pronounced by the trial court * * *."
The court then noted the provision in § 1, Ch. IV of the Rules and Regulations of the Parole Board that:
"`Section 1. Definition. Good time allowance is a reduction of the maximum sentence of an inmate as a result of his good, proper and helpful attitude, conduct and behavior in the institution and/or as a result of his adherence to the rules of the institution. Good time allowance shall not be granted or awarded to an inmate so as to reduce the time served to less than the minimum sentence. (Emphasis added.)'" Dorman, 665 P.2d at 513.
After Dorman's sentence was affirmed, the statutory provision and the rule relied upon in that decision both were modified. Section 7-13-402(a), W.S. 1977 (June 1987 Repl.), provides:
"(a) The board may grant a parole to any person imprisoned in any institution under sentence, except a life sentence, ordered by any district court of this state, provided the person has served the minimum term pronounced by the trial court less good time, if any, granted under rules promulgated pursuant to W.S. 7-13-420."
The governor then adopted rules relating to good time allowance for inmates of the Wyoming State Penitentiary and the Wyoming Women's Center, in accordance with the authority granted by § 7-13-423, W.S. 1977 (1984 Cum.Supp.) (now set forth in § 7-13-420, W.S. 1977 (June 1987 Repl.). The new rules provided with respect to the definition of good time allowance:
"Section 1. Definitions. (a) `Good time allowance' is a reduction of the maximum sentence of an inmate in the amount of ten (10) days per month for each month served on a sentence as a result of the inmate's proper and helpful attitude, conduct and behavior in the institution and/or as the result of his/her adherence to the rules of the institution."
The restriction set forth in the prior definition of good time that "good time allowance shall not be granted or awarded to an inmate so as to reduce the time served to less than a minimum sentence" was deleted.
In light of the recent statutory amendments and modification of the rules, there now appears to be no restriction that prevents the reduction of Duffy's maximum sentence below his minimum sentence. Duffy has not argued that he is entitled to be released now if his good time earned is deducted from his maximum sentence. Neither has he presented any evidence that would indicate that he is presently being denied any good time to which he would be entitled under the statute and the rules. Under those circumstances, Duffy's argument does not present a cognizable claim that is ripe for our review. It will be appropriate for him to seek that relief when he can establish that the combination of good time added to the time served demonstrates that he has served the maximum term and is entitled to release. The record does not demonstrate any invasion of a constitutional liberty interest at this time that would justify a conclusion that Duffy's sentence is illegal.
In the third argument presented by Duffy, the claim is made that his sentence is illegal because it violates the separation of powers provision of the Wyoming Constitution. Duffy contends that the sentence restricts the authority of the
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