BEFORE ROY NOBLE LEE, HAWKINS and PRATHER
ROY NOBLE LEE, PRESIDING JUSTICE, FOR THE COURT:
This is a pro se appeal by Roosevelt Lacy, who is presently incarcerated at the Mississippi State Penitentiary, from an order of the Circuit Court of Sunflower County, Mississippi, dismissing his petition for writ of habeas corpus.
The sole question involved in this appeal and presented in the petition for writ of habeas corpus is whether or not appellant received all of his jail time credits, whether his constitutional rights were violated in denying him good time credit, and whether or not the lower court erred in dismissing his petition for writ of habeas corpus.
On June 23, 1982, Lacy was arrested for felony
shoplifting, and was held in the Columbus City Jail. On August 26, 1982, he was convicted and sentenced to serve a term of five (5) years, the maximum term for the charge. Lacy appealed his conviction to this Court and on June 8, 1983, the conviction was affirmed. The mandate was issued on June 24, 1983. During this time, he was held in the Lowndes County Jail. On July 1, 1983, he was transferred to Parchman, and was credited with jail time but not "good time" while in jail awaiting disposition of his appeal.
Lacy was held for sixty-four (64) days before his trial. Another two hundred eighty-six (286) passed until his conviction was affirmed. Then twenty-two (22) days passed before he was physically transferred to Parchman. He was, however, classified as a Class IV offender on June 8, 1983.
The classification of offenders is set forth in Mississippi Code Annotated 47-5-139 (1972). Class IV prisoners are not eligible for "earned time" ("good time") credit. All prisoners are put in Class IV upon their arrival in the corrections system. A prisoner must remain in Class IV for at least thirty (30) days, then he may be reclassified as often as necessary thereafter. Lacy quickly progressed to Class I.
Lacy contends that the fact he was not allowed to earn "good time" while his appeal was pending violates the Equal Protection and Due Process Clauses of the Constitution. It is unquestioned that Lacy was incarcerated pending the affirmance of his conviction. This was apparently due to his inability to make bail due to indigence. He contends that had he not appealed he would have become eligible to earn "good time" from the date of his conviction. Alternatively, had he been able to make bail, he would have been free pending the affirmance. Therefore, he argues that, due to the fact he exercised his right to appeal and was indigent, he will be incarcerated longer than others who commit the same crime and receive the same sentence.
Mississippi Code Annotated 99-35-131 (1972) provides:
In case of an affirmance by the supreme court of a judgment for imprisonment, if the appellant had remained in prison pending the appeal, the time of imprisonment shall be credited to him, but if he have [sic] been on bail, the supreme court shall fix the time for the commencement of his imprisonment, under the judgment of affirmance, so as to cause him to suffer the full time of imprisonment fixed by the
judgment of the court below.
Mississippi Code Annotated 47-5-139 (Supp. 1981), provides "good time" :
(1) In order to encourage discipline, a distinction shall be made in the treatment of offenders so as to extend to all such as are orderly, industrious and obedient the comforts and privileges according to their deserts. The reward to be bestowed on prisoners for good conduct and performance shall consist of such relaxation of strict prison rules and extension of social privileges as may be consistent with proper discipline and security.
(2) The classification committee shall group all inmates into one (1) of four (4) separate and distinct classes with ...