[93]*93ORDER
On December 12, 1989, the petitioner, Hugo Darwin Ekstrand, filed an application for this Court to assume jurisdiction and issue a writ of habeas corpus in Tulsa County District Court Case No. CRF-87-728. Petitioner has alleged that 57 O.S. Supp.1988, § 138 is an ex post facto law as applied to him in that it computes earned time credits in such a way as to allow him fewer credits than he was given under the previous statute, thereby lengthening his sentence. On December 20, 1989, this Court directed a response from the Respondents. On January 29, 1990, the Respondents filed their response.
The saga concerning this Court’s holding as to 57 O.S.Supp.1988, § 138 began on June 20, 1989, when this Court granted post-conviction relief in Mahler v. State, 776 P.2d 565 (Okl.Cr.1989), finding that 57 O.S.Supp.1988, § 224 was an ex post facto law as applied to prisoners whose crimes were committed prior to the effective date of the November 1, 1988, amendment. Relying on Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981), this Court found that the new statute constricted a prisoner’s opportunity to earn early release, and thereby made more onerous the punishment for crimes committed before its enactment. We held that prisoners whose crimes were committed prior to the effective date of the amendment were entitled to the benefits of § 224 as it existed prior to the amendment. Mahler, 776 P.2d at 566. We did not hold that prisoners were entitled to earn credits under both statutes, but rather, that prisoners whose crimes were committed prior to the amendment were entitled to receive the credits under the law as it existed at the time they had committed their crime, plus any new opportunities to earn additional credit not available under the prior law.
On October 10,1989, we entered an order withdrawing the June 20th order, holding that we had exceeded our criminal jurisdiction, and finding that proper jurisdiction lay in the Oklahoma Supreme Court. Mahler v. State, 781 P.2d 835 (Okl.Cr.1989).
Finally, on December 5, 1989, we issued a final order disposing of the original proceeding that was still pending in this Court. Mahler v. State, 783 P.2d 973 (Okl.Cr.1989). We explained that a complaint concerning earned time credits is not properly brought under the Post-Conviction Procedure Act, 22 O.S.1981, § 1080 et seq., because such a complaint does not involve an attack upon the prisoner’s underlying conviction or imposition of sentence. We concluded that the only method by which this Court could obtain jurisdiction over a complaint concerning earned time credits was if the matter was brought as a writ of Habe-as Corpus and even then, only if a petitioner could claim entitlement to immediate release. Id.
In the meantime, the State of Oklahoma filed an application for a writ of prohibition in the Oklahoma Supreme Court, arguing that this Court had exceeded its jurisdiction [94]*94in its original Mahler ruling. The Oklahoma Supreme Court recently held that jurisdiction over questions pertaining to the length of sentences and credit time for reduction of those sentences belonged in this Court. The State of Oklahoma, et al., v. The Court of Criminal Appeals of the State of Oklahoma, 61 O.B.A.J. 145, 148 (Okla. January 16, 1990). We, therefore, turn to the petition presently before this Court.
Petitioner Ekstrand claims that the amendment to § 138 is unconstitutional as an ex post facto law when applied to him, because his crime was committed before the statute’s amendment. Two elements must be present for a criminal or penal law to be ex post facto: (1) it must be retrospective, that is, it must apply to events occurring before its enactment, and (2)it must disadvantage the offender affected by it. Lindsey v. Washington, 301 U.S. 397, 401, 57 S.Ct. 797, 799, 81 L.Ed. 1182 (1937). Furthermore, a law need not impair a “vested right” to violate the ex post facto prohibition. Thus, even if a statute merely alters penal provisions accorded by the grace of the legislature, it violates the Clause if it is both retrospective and more onerous than the law in effect on the date of the offense. Weaver v. Graham, 450 U.S. 24, 30, 101 S.Ct. 960, 965, 67 L.Ed.2d 17 (1981). We now consider the Oklahoma statute in light of these two considerations.
The initial inquiry is whether 57 O.S.Supp.1988, § 138 applies to prisoners convicted for acts committed before the amendment’s effective date. Title 57 O.S. Supp.1988, § 138(H) provides that as of the effective date of the act, November 1,1988, all inmates currently under the custody of the Department of Corrections shall receive their assignments and all credits from that date forward shall be calculated pursuant to this act. Therefore, it is a retrospective law which can be applied to petitioner only if it is not to his detriment. Dobbert v. Florida, 432 U.S. 282, 294, 97 S.Ct. 2290, 2298, 53 L.Ed.2d 344 (1977).
Whether a retrospective state criminal statute ameliorates or worsens conditions imposed by its predecessor is a federal question. Weaver v. Graham, supra, 450 U.S., at 33, 101 S.Ct., at 966. Under the second inquiry, we must determine whether the amendment makes more onerous the punishment for crimes committed before its enactment.
Title 57 O.S.1981, § 224, provided in pertinent part,
Each inmate who works for the state, county or municipality under this section shall be provided three (3) credit days, to be taken off his sentenced time, for each earned day of service.
Also, under 57 O.S.1981, § 138, every inmate who engaged in work, attended school or participated in a vocational training program, had one (1) day deducted from his sentence for each day that he engaged in such activity. In addition to the earned credits, an inmate was entitled to a deduction of twenty (20) days for each pint of blood donated to the American Red Cross or any approved agency or hospital. However, no inmate could receive blood credit for more than four donations in any twelve-month period. Thus an inmate could earn up to eighty (80) days of blood credit per twelve-month period.
Under the .1988 amendment, § 224 now provides in pertinent part,
Each inmate who works for the state, county or municipality under this section shall be provided credit, to be taken off his sentenced time, for each earned day of service, pursuant to the provisions of Section 138 of this title.
Under 57 O.S.Supp.1988, § 138, every inmate of a state correctional institution shall have their term of imprisonment reduced monthly, based upon the class level to which they are assigned. Prisoners are divided into four (4) classes, based essentially on the length of their incarceration. The maximum monthly credits any prisoner can now receive is forty-four (44). In addition, four (4) requirements to earn the credits have now been established for the classes. See 57 O.S.Supp.1988, § 138(C)(3). Achievement earned credits are also awarded based on educational achievement and [95]
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[93]*93ORDER
On December 12, 1989, the petitioner, Hugo Darwin Ekstrand, filed an application for this Court to assume jurisdiction and issue a writ of habeas corpus in Tulsa County District Court Case No. CRF-87-728. Petitioner has alleged that 57 O.S. Supp.1988, § 138 is an ex post facto law as applied to him in that it computes earned time credits in such a way as to allow him fewer credits than he was given under the previous statute, thereby lengthening his sentence. On December 20, 1989, this Court directed a response from the Respondents. On January 29, 1990, the Respondents filed their response.
The saga concerning this Court’s holding as to 57 O.S.Supp.1988, § 138 began on June 20, 1989, when this Court granted post-conviction relief in Mahler v. State, 776 P.2d 565 (Okl.Cr.1989), finding that 57 O.S.Supp.1988, § 224 was an ex post facto law as applied to prisoners whose crimes were committed prior to the effective date of the November 1, 1988, amendment. Relying on Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981), this Court found that the new statute constricted a prisoner’s opportunity to earn early release, and thereby made more onerous the punishment for crimes committed before its enactment. We held that prisoners whose crimes were committed prior to the effective date of the amendment were entitled to the benefits of § 224 as it existed prior to the amendment. Mahler, 776 P.2d at 566. We did not hold that prisoners were entitled to earn credits under both statutes, but rather, that prisoners whose crimes were committed prior to the amendment were entitled to receive the credits under the law as it existed at the time they had committed their crime, plus any new opportunities to earn additional credit not available under the prior law.
On October 10,1989, we entered an order withdrawing the June 20th order, holding that we had exceeded our criminal jurisdiction, and finding that proper jurisdiction lay in the Oklahoma Supreme Court. Mahler v. State, 781 P.2d 835 (Okl.Cr.1989).
Finally, on December 5, 1989, we issued a final order disposing of the original proceeding that was still pending in this Court. Mahler v. State, 783 P.2d 973 (Okl.Cr.1989). We explained that a complaint concerning earned time credits is not properly brought under the Post-Conviction Procedure Act, 22 O.S.1981, § 1080 et seq., because such a complaint does not involve an attack upon the prisoner’s underlying conviction or imposition of sentence. We concluded that the only method by which this Court could obtain jurisdiction over a complaint concerning earned time credits was if the matter was brought as a writ of Habe-as Corpus and even then, only if a petitioner could claim entitlement to immediate release. Id.
In the meantime, the State of Oklahoma filed an application for a writ of prohibition in the Oklahoma Supreme Court, arguing that this Court had exceeded its jurisdiction [94]*94in its original Mahler ruling. The Oklahoma Supreme Court recently held that jurisdiction over questions pertaining to the length of sentences and credit time for reduction of those sentences belonged in this Court. The State of Oklahoma, et al., v. The Court of Criminal Appeals of the State of Oklahoma, 61 O.B.A.J. 145, 148 (Okla. January 16, 1990). We, therefore, turn to the petition presently before this Court.
Petitioner Ekstrand claims that the amendment to § 138 is unconstitutional as an ex post facto law when applied to him, because his crime was committed before the statute’s amendment. Two elements must be present for a criminal or penal law to be ex post facto: (1) it must be retrospective, that is, it must apply to events occurring before its enactment, and (2)it must disadvantage the offender affected by it. Lindsey v. Washington, 301 U.S. 397, 401, 57 S.Ct. 797, 799, 81 L.Ed. 1182 (1937). Furthermore, a law need not impair a “vested right” to violate the ex post facto prohibition. Thus, even if a statute merely alters penal provisions accorded by the grace of the legislature, it violates the Clause if it is both retrospective and more onerous than the law in effect on the date of the offense. Weaver v. Graham, 450 U.S. 24, 30, 101 S.Ct. 960, 965, 67 L.Ed.2d 17 (1981). We now consider the Oklahoma statute in light of these two considerations.
The initial inquiry is whether 57 O.S.Supp.1988, § 138 applies to prisoners convicted for acts committed before the amendment’s effective date. Title 57 O.S. Supp.1988, § 138(H) provides that as of the effective date of the act, November 1,1988, all inmates currently under the custody of the Department of Corrections shall receive their assignments and all credits from that date forward shall be calculated pursuant to this act. Therefore, it is a retrospective law which can be applied to petitioner only if it is not to his detriment. Dobbert v. Florida, 432 U.S. 282, 294, 97 S.Ct. 2290, 2298, 53 L.Ed.2d 344 (1977).
Whether a retrospective state criminal statute ameliorates or worsens conditions imposed by its predecessor is a federal question. Weaver v. Graham, supra, 450 U.S., at 33, 101 S.Ct., at 966. Under the second inquiry, we must determine whether the amendment makes more onerous the punishment for crimes committed before its enactment.
Title 57 O.S.1981, § 224, provided in pertinent part,
Each inmate who works for the state, county or municipality under this section shall be provided three (3) credit days, to be taken off his sentenced time, for each earned day of service.
Also, under 57 O.S.1981, § 138, every inmate who engaged in work, attended school or participated in a vocational training program, had one (1) day deducted from his sentence for each day that he engaged in such activity. In addition to the earned credits, an inmate was entitled to a deduction of twenty (20) days for each pint of blood donated to the American Red Cross or any approved agency or hospital. However, no inmate could receive blood credit for more than four donations in any twelve-month period. Thus an inmate could earn up to eighty (80) days of blood credit per twelve-month period.
Under the .1988 amendment, § 224 now provides in pertinent part,
Each inmate who works for the state, county or municipality under this section shall be provided credit, to be taken off his sentenced time, for each earned day of service, pursuant to the provisions of Section 138 of this title.
Under 57 O.S.Supp.1988, § 138, every inmate of a state correctional institution shall have their term of imprisonment reduced monthly, based upon the class level to which they are assigned. Prisoners are divided into four (4) classes, based essentially on the length of their incarceration. The maximum monthly credits any prisoner can now receive is forty-four (44). In addition, four (4) requirements to earn the credits have now been established for the classes. See 57 O.S.Supp.1988, § 138(C)(3). Achievement earned credits are also awarded based on educational achievement and [95]*95completion of programs such as the Alcohol/Chemical Abuse Treatment Program. However, no inmate can receive more than ninety (90) achievement credits per calendar year and no credit is given for blood donations. See 57 O.S.Supp.1988, § 138(F).
Sentences and any reduction credits thereon are dictated by the Legislature. However, after a comparison of the statutes, before and after the amendment, it is obvious that 57 O.S.Supp.1988, §§ 138 and 224 are disadvantageous to petitioner and other similarly situated prisoners. On its face, the amended statute adds requirements and reduces the number of monthly earned credits available to an inmate who abides by prison rules and adequately performs his or her assigned tasks. By definition, this reduction lengthens the period that someone in petitioner’s position must spend in prison. Thus, the amended statute constricts an inmate’s opportunity to earn early release, and thereby makes more onerous the punishment for crimes committed before its enactment. This result simply runs afoul of the prohibition against ex post facto laws. See Weaver v. Graham, supra, 450 U.S. at 36, 101 S.Ct. at 968. See also, Miller v. Florida, 482 U.S. 423, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987) and Raske v. Martinez, 876 F.2d 1496 (11th Cir.1989). Therefore, we hold that petitioner, and other similarly situated inmates who are disadvantaged by the amended statute, shall be entitled to the credits allotted under the statute effective on the date their crime was committed.
As we held in Mahler v. State, 783 P.2d 973 (Okl.Cr.1989), the proper procedure for petitioner and similarly situated inmates to follow is to file a petition for Writ of Habeas Corpus in the district court of the county where he or she is being restrained. In re Dykes, 13 Okl. 339, 74 P. 506, 507 (1903). However, before any such writ can be granted, a petitioner must demonstrate that under the statute in effect on the date his or her crime was committed, he or she would have earned enough credits to be entitled to IMMEDIATE release. See In re Salisbury, 363 P.2d 380, 381 (Okl.Cr.1961).
The petitioner has not shown that he is entitled to immediate release and the bare statements by petitioner are not sufficient evidence for this Court to grant petitioner his requested writ of habeas corpus and, therefore, such writ should be denied. Petitioner herein should petition the District Court having proper jurisdiction for a new writ of habeas corpus to request immediate release and/or an evidentiary hearing to determine whether or not the petitioner would be entitled to immediate release pursuant to the terms of this order. All other parties that would also be entitled to immediate release under the terms of this order may likewise apply to a court of competent jurisdiction. The evidentiary hearing required to make such determination are properly to be held in the appropriate District Court. Therefore, the petition for the writ of habeas corpus should be, and hereby is, DENIED.
IT IS SO ORDERED.
/s/ James F. Lane James F. Lane, Vice Presiding Judge
Is/ Tom Brett Tom Brett, Judge
Is/ Gary L. Lumpkin Gary L. Lumpkin, Judge,
concur in part Dissent in part
/s/ Charles A. Johnson Charles A. Johnson, Judge