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The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)


STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6514

April 22, 1988

CORRECTIONAL INSTITUTIONS: Computation of good time for prisoners convicted of certain controlled drugs offenses

STATUTES: Construction of effective date of amendment

Prisoners currently under the jurisdiction of the Department of Corrections who were convicted of controlled substance offenses set forth in MCL 333.7403(2)(a)(i), (ii), or (iii); MSA 14.15(7403)(2)(a)(i), (ii), or (iii), and who were under the five-day sentence reduction limitation of the former provisions of MCL 800.33(4); MSA 28.1403(4), may be allowed sentence reduction pursuant to MCL 800.33(2); MSA 28.1403(2), commencing April 1, 1987, the effective date of 1986 PA 322.

Robert Brown, Jr.

Director

Michigan Department of Corrections

Stevens T. Mason Building

Lansing, Michigan

You have requested my opinion as to how sentence reduction time is to be credited under MCL 800.33; MSA 28.1403, as amended by 1986 PA 322, to Michigan Department of Corrections prisoners convicted of the possession of controlled substances. In light of the 1986 amendment whereby the limitation on sentence reduction for certain drug offenders was deleted from MCL 800.33(4); MSA 28.1403(4), you have asked whether such persons should receive the sentence reductions otherwise provided by MCL 800.33(2); MSA 28.1403(2).

An examination of the 1986 amendment is essential. MCL 800.33; MSA 28.1403, as amended by 1986 PA 322, provides in pertinent part:

'(2) Except as otherwise provided in this section, a prisoner who is serving a sentence for a crime committed before the effective date of this 1986 amendatory act and who has not been found guilty of a major misconduct or had a violation of the laws of this state recorded against him or her shall receive a reduction from his or her sentence as follows:

(a) During the first and second years of his or her sentence, 5 days for each month.

(b) During the third and fourth years, 6 days for each month.

(c) During the fifth and sixth years, 7 days for each month.

(d) During the seventh, eighth, and ninth years, 9 days for each month.

(e) During the tenth, eleventh, twelfth, thirteenth, and fourteenth years, 10 days for each month.

(f) During the fifteenth, sixteenth, seventeenth, eighteenth, and nineteenth years, 12 days for each month.

(g) From and including the twentieth year, up to and including the period fixed for the expiration of the sentence, 15 days for each month.

'(3) All prisoners serving a sentence for a crime which was committed on or after the effective date of this 1986 amendatory act shall be eligible to earn disciplinary and special disciplinary credits as provided in subsection (5). Disciplinary credits shall be earned, forfeited, and restored as provided in this section. Accumulated discipinary credits shall be deducted from a prisoner's minimum and maximum sentence in order to determine his or her parole eligibility date and discharge date.

'(4) This section shall not be construed to allow good time, disciplinary credits or special disciplinary credits in cases of commuted sentences unless so stipulated in the executive order commuting the sentence.

'(5) All prisoners serving a sentence on December 30, 1982, or incarcerated after December 30, 1982, for the conviction of a crime enumerated in section 33b(a) to (c) of Act No. 232 of the Public Acts of 1953, being section 791.233b of the Michigan Compiled Laws, shall be eligible to earn a disciplinary credit of 5 days per month for each month served after December 30, 1982. Accumulated disciplinary credits shall be deducted from a prisoner's minimum and maximum sentence in order to determine his or her parole eligibility dates.

'. . ..

'In addition to disciplinary credits, a prisoner may be awarded 2 days per month special disciplinary credits for good institutional conduct on the recommendation of the disciplinary credit committee and the concurrence of the warden based on an annual review of the prisoner's institutional record. Special disciplinary credits shall not be awarded for any month in which a prisoner has been found guilty of a major misconduct.'

MCL 800.33(4); MSA 28.1403(4), prior to its amendment by 1986 PA 322, contained a limitation of five days per month total sentence reduction for individuals convicted of knowingly or intentionally possessing a controlled substance under MCL 333.7403(2)(a)(i), (ii), or (iii); MSA 14.15(7403)(2)(a)(i), (ii), or (iii), stating:

'(4) Subsections (2), (8), (9), and (10) shall not apply to a person convicted of an offense proscribed by section 7403(2)(a)(i), (ii), or (iii) of Act No. 368 of the Public Acts of 1978, being 333.7403 of the Michigan Compiled Laws, or of conspiracy to commit any of those offenses. Except as provided in subsection (3), a convict who is serving a sentence for a crime enumerated in this subsection and who does not have an infraction of the rules of the prison or a violation of the laws of the state recorded against him shall receive a reduction of 5 days for each month from his sentence.'

With the enactment of 1986 PA 322, the five-day per month sentence reduction limitation previously contained in MCL 800.34(4); MSA 28.1403(4), was deleted and no provision was made by the Act for a separate exclusion of any sentence for certain controlled substance offenders.

When a section of a statute is amended, the original ceases to exist, and the section as amended supersedes it and becomes a part of the statute for all intents and purposes. Rookledge v Garwood, 340 Mich 444; 65 NW2d 785 (1954). To the extent that the original act is repeated in the later statute, these portions are considered to have continued in force, and any new provisions become law on the effective date of the amendment. Perry v Hogarth, 261 Mich 526; 246 NW 214 (1933).

Statutes should be given prospective application from their effective dates unless there is a clear and unequivocal expression of legislative intent that the statute is to be applied retroactively. Tucich v Dearborn Indoor Racquet Club, 107 Mich App 398; 309 NW2d 615 (1981).

It is clear from a reading of 1986 PA 322 that the Legislature intended to repeal the separate limitation for controlled substance offenders by this amendment. It is equally clear that the repeal of the previous provisions of MCL 800.33(4); MSA 28.1403(4), does not result in ambiguity or inconsistency in the prospective calculation of sentence reduction for the prisoners which it affected.

It is my opinion, therefore, that those prisoners currently under the jurisdiction of the Department of Corrections who were convicted of controlled substance offenses set forth in MCL 333.7403(2)(a)(i), (ii) or (iii); MSA 14.15(7403)(2)(a)(i), (ii) or (iii), and who were, therefore, under the five-day sentence reduction limitation of the former provisions of MCL 800.33(4); MSA 28.1403(4), may be allowed sentence reduction by the department pursuant to MCL 800.33(2); MSA 28.1403(2), commencing April 1, 1987, which is the effective date of 1986 PA 322, in the same manner as other prisoners.

Frank J. Kelley

Attorney General

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