Matter of Sanders , 1981 Okla. Crim. App. LEXIS 274 ( 1981 )

ORDER DENYING WRIT OF HABEAS CORPUS

The petitioner contends that Title 57 O.S. Supp.1981, § 138, as amended in 1976 operates as an ex post facto law in violation of the Fourteenth Amendment. This Court has recently addressed this issue in State v. Wood, 624 P.2d 555 (Okl.Cr.1981). In Wood we held that the statutory credits for good conduct under the pre-1976 statute were not substantively changed under the 1976 amended statute. The amended statute merely operates to change the procedural method by which the Department of Corrections calculates a prisoner’s release date. “The only difference is that under the amended statute the work credits are calculated monthly and then only after they are earned.”

We hold that State v. Wood, supra, is dispositive of this case. We also find that our disposition of this issue comports with the recent Supreme Court decision in Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981). In Weaver the Supreme Court held that a revision in a Florida statute, reducing the amount of “gain time” for good conduct, constituted an ex post facto law, as applied to that petitioner. The Supreme Court further asserted that “no ex post facto violation occurs if the change effected is merely procedural, and does not increase the punishment. . .” 450 U.S. 24, 101 S.Ct. at 964, n.12.

The petitioner has not sufficiently shown this Court that his term of imprisonment has been increased as a result of the 1976 amendment. Additionally, he has not affirmatively demonstrated that he is entitled to immediate release. Therefore, we find that the district court judge did not err in denying the petitioner’s writ of habeas corpus.

IT IS THEREFORE THE ORDER OF THIS COURT that the petition for writ of habeas corpus should be, and hereby is, DENIED.

WITNESS OUR HANDS and the seal of this Court this 26th day of October, 1981.

TOM BRETT, P. J.

HEZ J. BUSSEY, J.

TOM R. CORNISH, J.