Thomas v. Arkansas Board of Correction

Robert H. THOMAS v. ARKANSAS
BOARD of CORRECTION and
COMMUNITY PUNISHMENT; Jim Guy
Tucker, Governor of Arkansas;
and Winston Bryant, Attorney
General of Arkansas

95-1139         ___ S.W.2d ___

   Supreme Court of Arkansas
  Opinion delivered March 25,
1996


1.   Judgment -- appellant
     sought declaratory
     judgment -- no proof of
     any case or controversy.
     -- Where, by the
     unmistakable wording of
     the regulation, the
     appellee Department of
     Correction clearly did
     not intend to
     retroactively apply the
     1993 acts to deprive
     appellant of meritorious
     good time, appellant
     offered no proof to show
     that the Acting
     Director's memorandum had
     deprived him of
     meritorious good time, he
     presented no evidence to
     show that he had earned
     meritorious good time
     which was not allowed,
     under the clear language
     of the regulation,
     appellant still has the
     opportunity to earn
     meritorious good time in
     accord with the law in
     effect on the date of his
     offense, and he did not
     contend that the
     Department had
     erroneously calculated
     his good time by failing
     to follow this
     regulation, there was
     simply no case or
     controversy involving the
     application of the 1993
     acts to appellant; a
     holding by the court
     would have had no
     practical legal effect on
     an existing case.

2.   Appeal & error --
     generally, the supreme
     court does not address
     moot issues -- case
     remanded for dismissal. -
     -    A case is moot when
     any judgment rendered
     would have no practical
     legal effect upon a then-
     existing legal
     controversy; as a general
     rule, the supreme court
     does not address moot
     issues; there are some
     exceptions to the general
     rule, such as cases which
     are capable of repetition
     yet evade review, and
     cases involving the
     consideration of public
     interest and prevention
     of future litigation, but
     these exceptions did not
     apply to the present
     case; accordingly, the
     case was remanded for
     dismissal.
     

     Appeal from Lincoln
Circuit Court; Fred D. Davis,
III, Judge; remanded for
dismissal.
     Robert L. Thomas, for
appellant.
     Winston Bryant, Att'y
Gen., by:  Olan W. Reeves, Sr.
Asst. Att'y Gen., for appellee.

     Robert H. Dudley, Justice.
March 25, 1996   *ADVREP2*





ROBERT H. THOMAS,
                    APPELLANT,

V.

ARKANSAS BOARD OF CORRECTION
AND COMMUNITY PUNISHMENT; JIM
GUY TUCKER, Governor of
Arkansas; and WINSTON BRYANT,
Attorney General of Arkansas,
                    APPELLEES.



95-1139


APPEAL FROM THE LINCOLN COUNTY
CIRCUIT COURT,
NO. LCIV94-95-3,
HON. FRED D. DAVIS, III, JUDGE,




REMANDED FOR DISMISSAL.


                   Robert H. Dudley, Justice.


     Appellant, an inmate in the penitentiary, filed this suit
against the Board of Correction and Community Punishment, the
Governor, and the Attorney General.  He sought a declaratory
judgment that two 1993 acts, as applied to him, would constitute a
violation of the ex post facto doctrine.  He additionally sought
mandamus, class certification, and damages.  The trial court ruled
on the merits and denied relief.  We remand for the trial court to
dismiss.
     Appellant committed the crime of rape in 1989.  He contends
that his sentence is governed by the law in effect at the time of
the offense, and, under that law, the period to be served in the
penitentiary could be shortened with "meritorious good time."  See
Ark. Code Ann.  12-29-201 and -202 (1987).  He next contends that
the statutes providing for meritorious good time were repealed by
Acts 536 and 558 of 1993, codified as Ark. Code Ann.  12-29-201
and -202 (Repl. 1995), and that in August 1993, Larry Norris,
Acting Director of the Arkansas Department of Correction, wrote a
memorandum which provided that under the provisions of Act 536 of
1993, some good time will be phased out.  He concludes that the
effect of the 1993 acts will be to lengthen the period of time he
must serve in the penitentiary because "meritorious good time" has
been eliminated, and, consequently, the 1993 acts are prohibited as
ex post facto laws.  The trial court held that statutes which take 
away appellant's ability to earn meritorious good time are not ex
post facto laws.
     Appellant offered no proof at trial that he has been denied
meritorious good time.  He offered a copy of a memorandum by the
Acting Director that provides that some "good time" will be phased
out, but, on December 30, 1993, which was after the memorandum was
written and before the effective date of the 1993 acts, the Board
of Correction and Community Punishment approved a regulation on the
express subject of "meritorious good time."  In the material part,
it provides:
          G.   Effective Date
          1.  Inmates whose offense date is prior to January
     1, 1994, shall earn good time (including good time
     applied to the length of sentence) in accordance with the
     good time law in effect on the date of the offense.
          2.  Inmates whose offense date is on or after
     January 1, 1994, shall earn good time in accordance with
     Act 549 and Act 536 of 1993, Regular Session.
Arkansas Department of Correction and Community Punishment
Regulation DOC 826, DCP 7.9 (approved Dec. 30, 1993, effective Jan.
1, 1994) (superseding Ark. 826, dated July 17, 1991).
     By the unmistakable wording of the regulation, the Department
does not intend to retroactively apply the 1993 acts to deprive
appellant of meritorious good time.  Appellant offered no proof to
show that the Acting Director's memorandum has deprived him of
meritorious good time.  He presented no evidence to show that he
has earned meritorious good time which has not been allowed.  Under
the clear language of the regulation, appellant still has the
opportunity to earn meritorious good time in accord with the law in
effect on the date of his offense.   He does not contend that the
Department has erroneously calculated his good time by failing to
follow this regulation.  There is simply no case or controversy
involving the application of the 1993 acts to appellant.  A holding
by this court would have no practical legal effect on an existing
case.
     A case is moot when any judgment rendered would have no
practical legal effect upon a then-existing legal controversy. 
Arkansas Intercollegiate Conference v. Parnham, 309 Ark. 170, 174,
828 S.W.2d 828, 831 (1992).  As a general rule, this court does not
address moot issues.  A.P. Leonards v. E.A. Martin Mach. Co., 321
Ark. 239, 900 S.W.2d 546 (1995); Johnson v. State, 319 Ark. 3, 888 S.W.2d 661 (1994).  There are some exceptions to the general rule,
such as cases which are capable of repetition yet evade review, see
Nathaniel v. Forrest City Sch. Dist., 300 Ark. 513, 780 S.W.2d 539
(1989), and cases involving the consideration of public interest
and prevention of future litigation, see Duhon v. Gravett, 302 Ark.
358, 790 S.W.2d 155 (1990), but these exceptions do not apply to
the present case.  Accordingly, we remand for dismissal.
     Remanded.