DAVID A. GREGOIRE, petitioner.

DAVID A. GREGOIRE, petitioner.

355 Mass. 399

February 5, 1969 - February 28, 1969

Suffolk County

Present: WILKINS, C.J., SPALDING, WHITTEMORE, KIRK, & REARDON, JJ.

The provision of G. L. c. 127, Section 83B, as amended through St. 1955, c. 770, Section 47, relating to forfeiture of deductions from sentence of a prisoner in a prison camp by reason of an escape or attempted escape is not so repugnant to the amendment of G. L. c. 127, Section 129, by St. 1963, c. 535, as to have been impliedly repealed by such amendment of Section 129.

PETITION filed in the Superior Court on May 17, 1968.

The case was heard by Roy, J.

The case was submitted on briefs.

Melvin S. Louison for the petitioner.

Richard L. Levine, Deputy Assistant Attorney General, for the Superintendent, Massachusetts Correctional Institution at Norfolk.

SPALDING, J. This petition for a writ of habeas corpus was heard on a statement of agreed facts. An order for judgment was entered dismissing the petition. The petitioner appealed.

In 1964 the petitioner was convicted of operating a motor vehicle without authority after his right to operate had been suspended, and was sentenced to a term of from two and one-half to five years at the Massachusetts Correctional Institution at Walpole. On November 19, 1967, he escaped from the Warwick Prison Camp to which he had been transferred. After he was apprehended, he was tried and convicted in 1968 of the crime of escape and was sentenced to an additional term of six months. As a result of the escape, the Commonwealth forfeited all of his good conduct deductions in relation to the 1964 sentence under the provisions of G. L. c. 127, Section 83B. The parties agree that if these

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good conduct deductions were improperly forfeited, the petitioner would be entitled to an immediate release.

General Laws c. 127, Section 83B, as amended through St. 1955, c. 770, Section 47, reads in part, "If a prisoner escapes or attempts to escape from a prison camp all deductions from the sentence he is then serving shall be thereby forfeited." The petitioner argues that this provision conflicts with the more recently amended G. L. c. 127, Section 129, and therefore has been impliedly repealed. The principle of implied repeal "is one which the court, in deference to the Legislature, does not regard with favor and applies with caution . . . . The test of the applicability of the principle of implied repeal is whether the prior statute is so repugnant to and inconsistent with the later enactment covering the subject matter that both cannot stand." Doherty v. Commissioner of Admn. 349 Mass. 687 , 690. There is no such repugnancy here.

General Laws c. 127, Section 129, was amended by St. 1963 c. 535, to provide that if "during the term of imprisonment of a prisoner confined in a correctional institution of the commonwealth, such prisoner shall commit any offense of which he shall be convicted and sentenced, he shall not be entitled to any deductions hereunder from the new sentence or sentences of imprisonment." Prior to this amendment Section 129 required that the good conduct deductions be forfeited for the former, rather than the "new" or subsequent, sentence. We are of opinion that Section 129, as amended, does not so conflict with Section 83B as to repeal it. The statutes, although overlapping in some respects, have separate functions which are not inconsistent. Section 83B punishes only escapes or attempted escapes, operates only with respect to sentences being served at the time of the escape, and applies only to inmates of prison camps. In contrast, Section 129 punishes any offence by the prisoner for which a conviction later is secured, operates only with respect to future sentences, and applies to prisoners in all correctional institutions.

Order dismissing petition affirmed.