Petition for Writ of Certiorari — Lynce v. Mathis
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Supreme Court, U.S.
GAA B® (2) FILED
JAN 10 1996
No. OFFICE OF THE CLERK
IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1995
HAMILTON MATHIS
ROBERT BUTTERWORTH
Respondents
ON PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
PETITION FOR WRIT OF CERTIORARI ‘ae
JOEL T. REMLAND
Counsel for Petitioner LYNCE
Assistant Federal Public Defender
Florida Bar ID No. 169291
80 North Hughey Avenue, Suite 417
Orlando, Florida 32801-2229
Telephone: (407) 648-6338
Questions Presented for Review
Petitioner, Kenneth Lynce, contends the United States Court of Appeals, erred in denying
his request for a certificate of probable cause.' He maintains his petition makes a substantial
showing of the denial of a federal right, to wit: A violation of the Ex Post Facto Clause by the
state's cancellation of petitioner's previously granted early release credits and retroactive
application of offense-based exclusions from eligibility.
Further, the petitioner contends issues related to this question are debatable and adequate
for further proceedings. This Court currently has other similar cases pending, involving the same
issues as presented here on appeal from the United States Court of Appeals for the Eleventh
Circuit: Hock v. Singletary, Magnotti v. Singletary, filed with this Court respectively in August
and November 1995.
Thus, a certificate of probable cause was justified and should have been issued to answer
the following questions:
1. Does the Ex Post Facto Clause forbid a state to cancel a prisoner's previously granted
early-release credits and nondiscretionary release date through the retroactive application of
offense-based exclusions from eligibility?
2. Does a state legislature deprive a prisoner of liberty without due process of law by
destroying lawfully granted early-release credits and a lawfully established early-release date
without providing adjudicatory procedures and in the absence of substantive justification other
than the nature of the prisoner's antecedent offense.
‘Kenneth Lynce v. Hamilton Mathis, Superintendent, Tomoke Correctional Institution, and
Robert Butterworth, Attorney General, State of Florida
; .
EP eT, Fe SS
Table of Contents
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Constitutional and Statutory Provisions Involved .......................-...... 2
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Appendices
Order: Eleventh Circuit Court of Appeals, Kenneth Lynce v.
Hamilton Mathis and Robert Butterworth, No. 95-2773, affirming
the decision of the district court, entered October 12,1995 ...... Al
Judgment in a Civil Case, United States District Court, Kenneth Lynce v.
Hamilton Mathis and Robert Butterworth, No. 94-891-CIV-ORL-18,
dismissing action, entered May 10,1995 ................... A2
Endorsed Order: United States District Court, Kenneth Lynce v. Hamilton
Mathis and Robert Betterworth, No. 94--891-CIV-ORL-18, approving the
Magistrate Judge's Report and Recommendation and dismissing case with
prejudice, entered May 10, 1995..................cccceuee A3
Report and Recommendation of the Magistrate Judge entered on March
14, 1995, recommending that the Petition for Writ of Habeas corpus be
denied and that the case be dismissed with prejudice. .......... A4
eis Clee). o.oo oe eee ee AS-12
ii
Table of Authorities
ases Pages
Arnold v. Cody, 951 F.2d 280 (10th Cir. 1991) 2... cee eee eee eee eee 4-5,10-11
California Department of Corrections v. Morales, 115 S.Ct. 1597 (1995) .........- 4-911
Collins v. Youngblood, 497 U.S. 37 (1990) .. 6... cece eee eee eee 5,7
Dugger v. Rodrick, 584 So.2d 2, (Fla. 1991), cert. denied, 502 U.S. 1037 (1992) ...... ll
Ex parte Rutledge, 741 S.W.2d 460 (Tex.Crim.App. 1987)(en A ern 4,10-11
Greenfield v. Scafati, 277 F. Supp. (D. Mass. 1967)(three-judge court),
summarily aff'd, 390 U.S. 713 (1968) .. 6.2... cece eee eee eens 6-7
Hock v. Singletary, 41 F.3d 1470 (11th Cir. 1995) ...... ; seccvee eerste 3-5
Lindsey v. Washington, 301 U.S. 397 (1937)... 6... eee eee eee eee ii,4,6,9,11
Miller v. Florida, 482 U.S. 423 (1987) ...... ccc eee cree eee rere eecees 4,6,8-9
Story v. Collins, 920 F.2d 1247, 1251-52, 1252 n.1 (Sth Cir. 1991) «2... 1. eee ee eee 10
Weaver v. Graham, 450 U.S. 24 (1981) 0... cc cer ccc cee r nse cvcenssseeveeess 4-9
Other Authorities
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United States Supreme Court Rule 13.1. 2... 6... eee eens l
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Statutes
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§ 921.001(11)(d), Fla. Stat. (Supp. 1988) 2 ccc cee c cee cecees 2
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§ 944.277(1)(i), Fla. Stat. (Supp. 1992) 2.0.0... ccc cece eee ccceeeucceee 2-3,9
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Opinion Below
On October 12, 1995, the United States Court of Appeals for the Eleventh Circuit, issued
an order without opinion, denying Petitioner's Application for a Certificate of Probable Cause.
Mr. Lynce is serving a 22 year sentence in the Florida Department of Corrections.
Grounds for Jurisdiction
Grounds for invoking jurisdiction of this Court:
i.. The judgment of the United States Court of Appeals for the Eleventh Circuit of which
review is sought was entered on October 12, 1995, denying Petitioner's Application for Certificate
of Probable Cause.
ii. This petition is timely filed within the prescribed ninety days from the judgment
rendered, pursuant to United States Supreme Court Rule 13.1, and this Court's jurisdiction under
28 U.S.C. § 1254(1).
U.S. CONST. art I, § 10, cl. 1 provides in pertinent part that:
“No State shall ... pass any ... ex post facto Law ... ”
U.S. CONST. amend XIV, § 1 provides in pertinent part that:
“{N]Jor shall any State deprive any person of life, liberty or property, without due
process of law ... ”
The following Florida Statutes are reproduced in the Appendix:
§ 921.001, Fla. Stat. (Supp. 1986)
§ 921.001(9)(b), Fla. Stat. (1993)
§ 921.001(10)(b), Fla. Stat. (1987)
§ 921.001(11)(d), Fla. Stat. (Supp. 1988)
§ 944.276, Fla. Stat. (1987)
§ 944.277, Fla. Stat. (Supp. 1988)
§ 944.277, Fla. Stat. (Supp. 1992) ;
§ 944.598, Fla. Stat. (Supp. 1986)
STATEMENT OF THE CASE
The State of Florida convicted Petitioner Lynce of attempted first degree murder and other
offenses on April 14, 1986. He was sentenced to a term of 22 years imprisonment. He became
eligible for “provisional gain time” or early-release credits under § 944.277, Fla. Stat. (Supp.
1988), which authorized his release on October 1, 1992. After being released, the law was
changed by amendment, see § 944.277, Fla. Stat. (Supp. 1992), and a subsequent interpretation
by the Florida Attorney General's office authorized a retroactive application and cancellation of
all petitioner's previously earned 1860 days of early release credits.
Thus, Mr. Lynce was arrested in June 8, 1993, and sent back to prison, due to this
retroactive cancellation of his early release credits. His release date was changed from October
1, 1992, to May 19, 1998. Petitioner has claimed his release date is November 5, 1998. His
sentence of imprisonment was increased by the revocation of all provisional gain time previously
authorized under §944.277 and § 921.001, Fla. Stat. (Supp. 1988).
This petition was filed on August 18, 1994. My Lynce challenged the application of the
1992 law to him as ex post facto and as a denial of due process. The District Court approved
the United States Magistrate Judge's Report and Recommendation of March 14, 1995, and
dismissed the petition on May 10, 1995. This Report primarily relied on the case of Hock v.
Singletary, 41 F.3d 1470 (11th Cir. 1995), for denial of this petition. The Hock case is now
pending before this Court, as is the case of Magnotti v. Singletary.
Petitioner Lynce filed for a certificate of probable cause in the District Court which was
denied on June 16, 1995. An appeal to the Eleventh Circuit proved futile and on October 12,
1995, the application for a certificate for probable cause was denied. This petition was filed to
seek further relief.
Basis for Federal Jurisdiction
Original jurisdiction of the district court was invoked under 28 U.S.C. § 2254. Review
of that court's judgment was sought by appeal to the United States Court of appeals for the
Eleventh Circuit, pursuant to 28 U.S.C. § 1291. This petition follows.
REASONS FOR GRANTING THE WRIT
Petitioner requests this Court grant a certificate of probable cause and allow an appeal on
the merits. The denial of the petition was based upon the case of Hock v. Singletary, Supra.
The analysis of this case decided by the Eleventh Circuit conflicts substantially with the ex post
facto analysis mandated by this Court's subsequent decision in California Department of
Corrections v. Morales, 115 S.Ct. 1597 (1995). The Eleventh Circuit did not have the benefit
of the Morales opinion when it rejected Mr. Hock’s ex post facto claim.
Nowhere do the precedents of this Court recognize a “procedural” or “administrative
convenience” exception to the Ex Post Facto Clause. In its broadly worded and confusing
creation of such an exception, the opinion in Hock conflicts directly with Arnold v. Cody, 951
F.2d 280 (10th Cir. 1991), and Ex parte Rutledge, 741 S.W.2d 460 (Tex. Crim. App. 1987)(en
banc). It also conflicts with the reasoning and holdings of this Court in Morales, Miller v.
Florida, 482 U.S. 423 (1987); Weaver v. Graham, 450 U.S. 24 (1981), and Lindsey v.
Washington, 301 U.S. 397 (1937).
This Court held in Weaver v. Graham, 450 U.S. 24 (1981), and other cases that
retroactive reductions in substantial opportunities for early release violate the Ex Post Facto
Clause. In numerous cases culminating in the Morales case, the Court has firmly established
that a retroactive increase in the effective term of confinement is ex post facto. The judgment
below conflicts with Weaver, and it strongly conflicts in principle with Morales; Collins v.
Youngblood, 497 U.S. 37 (1990), and earlier opinions of this Court.
The judgment of the lower court also conflicts directly with Arnold v. Cody, 951 F.2d 280
(10th Cir. 1991), and Ex parte Rutledge. Unlike the Eleventh Circuit, which upheld the
cancellation of Petitioner's credits and nondiscretionary release date, the Tenth Circuit and Texas
courts recognize that retroactive ineligibility for early-release credits designed in part to control
the prison population have the prohibited effect of increasing punishment.
The ex post facto question is of great constitutional and practical importance. Numerous
states employ, and the durations of thousands of criminal sentences are affected by, mechanisms
surrounding the sentence that shorten the duration of incarceration. The Eleventh Circuit has
erred on this important question by exempting early-release laws, essentially on grounds of
administrative convenience, from the constraints of the Ex Post Facto Clause.
1. THE JUDGMENT OF THE ELEVENTH CIRCUIT CONFLICTS DIRECTLY
WITH WEAVER y. GRAHAM AND CONFLICTS IN PRINCIPLE WITH
CALIFORNIA DEPARTMENT OF CORRECTIONS v. MORALES.
The judgment of the court below relying on Hock, is in substantial conflict with each of
this Court's opinions applying the Ex Post Facto Clause to retroactive increases in punishment.
z at “ ?
It conflicts directly with Weaver v. Graham and Greenfield v. Scafati, 277 F. Supp. (D. Mass.
1967)(three-judge court), summarily aff'd, 390 U.S. 713 (1968). On fundamental ex post facto
principles it conflicts with California Department of Corrections v. Morales, 115 S.Ct. 1597
(1995), Miller v. Florida, 482 U.S. 423 (1987), Lindsey v. Washington, 301 U.S. 397 (1937),
and other authority. Given the clarity and consistency of the Court's precedents, summary
reversal pursuant to Rule 16.1 would be appropriate.
The conflict with Weaver v. Graham and Greenfield v. Scafati is direct. In Weaver, this
Court struck down as ex post facto a retroactive Florida law that potentially added over two years
to the actual duration of the prisoner's confinement. Weaver, 450 U.S. at 27 n. 6. The 1979 law
held unconstitutional in Weaver was reduced the amount of basic gain-time the Secretary was
required to deduct from the prisoner's sentence. /d. at 26. Basic gain-time was a determinant of
the actual duration of the prisoner's confinement. /d. at 31-32. The Court held that the new law
“constricts the inmate's opportunity to earn early release, and thereby makes more onerous the
punishment for crimes committed before its enactment.” Id. at 35-36. The cancellation of Mr.
Lynce’s 1860 days of early-release credits and his October 1, 1992, effected an increase in the
actual duration of his incarceration that was both greater and more certain than the increase held
unconstitutional in Weaver.
There can be no clearer ex post facto violation under Weaver than the State's increase --
after releasing petitioner on October 1, 1992 -- Mr. Lynce’s incarceration by over five years and
solely by reason of his 1986 conviction for attempted first degree murder. Where Weaver and
Greenfield were concemed with the potential effects of generally applicable amendments, this
case presents an actual, fully quantified increase in the duration of confinement based explicitly
on the nature of the prisoner's antecedent offense. The judgment below directly conflicts with
Weaver and Greenfield.
In addition to the direct conflict with Weaver, the lower court's judgment repudiated the
constitutional principles established by each of this Court's opinions analyzing the effects of
retroactive laws on punishment. The lower court's rejection of Mr. Lynce’s claim conflicts with
the following ex post facto principles:
1. A law that is asserted procedural in name or form is ex post facto if it
retroactively increases punishment.
According to the court below the retroactive cancellation by law of a known quantity of
early-release credits and an established release date, solely by reason of the prisoner's antecedent
offense, is “procedural” and, therefore, not ex post facto. (See my Report as App.). This rational
conflicts with this Court's consistent understanding that the Ex Post Facto Clause prohibits the
retroactive application of procedural laws that effectively increase the actual duration of
confinement. "{B]y simply labelling a law ‘procedural,’ a legislature does not thereby immunize
it from scrutiny under the Ex Post Facto Clause. Subtle ex post facto violations are no more
permissible than overt ones....[t]he constitutional prohibition is addressed to laws, whatever their
form, which...increase the punishment.” Collins v. Youngblood, 497 U.S. 37, 46 (1990)(citations
and internal quotation omitted).
Just last term the Court, by fully analyzing the potential effects of a procedural law, made
it clear that the ex post facto prohibition applies with full force to any law, “procedural” or —
otherwise, that affects punishment. See California Department of Corrections v. Morales, 115
S.Ct. 1597 (1995)(assessing in detail the potential effects of a law governing the timing of parole
ee +. 7 e "
suitability hearings without employing the term “procedural”). The mere characterization of a
law as “procedural” is, standing alone, not dispositive of an ex post facto claim. Miller v.
Florida, 482 U.S. 423, 233 (1987); Weaver v. Graham, 450 U.S. 24, 36 n.21 (1981). The
judgment below conflicts with this well-established principle.
2. The ex post facto analysis must focus on the concrete effects of the challenged
law.
The entire thrust of this Court's recent opinion in California Department of Corrections
v. Morales, 115 S.Ct. 1597 (1995), is that the Ex Post Facto Clause requires an analysis of the
effects of the new law on the actual duration of ‘mprisonment.. In the course of its detailed
analysis of the California law that altered the frequency of parole suitability hearings, the Court
repeatedly emphasized that it could not discern the effects prohibited by the Ex Post Facto
Clause: a substantial risk of increasing the actual duration of confinement. /d. at 1603, n.4,
1604, 1605. Morales confirms that the constitutional standard applicable to Mr. Lynce’s claim
is whether the 1992 Florida law effectively increases his confinement. Jd. at 1603 n.4. See also
Weaver, 450 U.S. at 32 n.17.
The lower court refuses to apply that standard. The 1992 Florida law obviously extended
-- and was intended to extend -- Mr. Lynce’s actual period of confinement by 1860 days; it
extended his operative release date pursuant to Section 921.001 from October 1, 1992 to
tentatively May 19, 1998 or November 5, 1998. That increase in the actual period of
confinement is precisely the effect that the Ex Post Facto Clause, as interpreted by Morales and
its forbears, prohibits. By ignoring that effective increase, the lower court's judgment conflicts
with the most fundamental premise of Morales, Miller v. Florida, 482 U.S. 423 (1987), Weaver
v. Graham, 450 U.S. 24 (1981), and Lindsey v. Washington, 301 U.S. 397 (1937).
3. The prohibition against ex post facto laws applies to adjustments to proce-
dures surrounding the sentence
The lower court ignores the obvious increase in Mr. Lynce’s confinement by asserting that
“provisional gain-time is in no sense tied to any aspect of the original sentence.” The court's
evasive rationale substantially conflicts with basic ex post facto principles.
Each of this Court's relevant opinions emphasized that the ex post facto prohibition
extends to early-release and other laws that effectively increase punishment, even if those laws
are not sentencing laws, narrowly conceived. See Miller, 482 U.S. at 432-33; Weaver, 450 U.S.
at 31-33; Lindsey, 301 U.S. at 401-02. Morales expressly confirms this basic principle by
performing an effects-oriented analysis of a parole law. Morales, 115 S.Ct. at 1603 n.4, 1602-05.
The lower court flouts it.
Although the lower court's assertion that early-release is not “tied to the original sentence”
is contrary to law and fact, this Court's longstanding interpretations of the Ex Post Facto Clause
render it constitutionally irrelevant. Ex post facto constraints clearly apply to the alteration of
a fixed release date, the date on which the sentence of imprisonment effectively ends.
Incarceration is punishment, and longer incarceration is greater punishment. By canceling
Mr. Lynce’s credits and release date, § 944.277(1)(i), Florida Statutes (Supp. 1992), increased the
actual duration of Mr. Lynce’s confinement. The judgment of the lower court upholding the 1992
law conflicts with Weaver and the principles firmly established by Morales and numerous other
cases. For this reason alone the Court should grant certiorari to reverse judgment.
Il. THE OPINION OF THE COURT OF APPEALS CONFLICTS DIRECTLY
WITH JUDGMENTS OF THE TENTH CIRCUIT AND STATE COURTS.
Petitioner Lynce claims that the Ex Post Facto Clause constrains the State to determine
his eligibility for overcrowding-related release credits and to calculate his actual release date in
accordance with the law in effect at the time of his offense or its substantial equivalent. In
Arnold v. Cody, 951 F.2d 280 (10th Cir. 1991), the court upheld an identical claim made by an
Oklahoma prisoner. Similar claims were upheld in Ex parte Rutledge, 741 S.W.2d 460
(Tex.Crim.App. 1987)(en banc). See Story v. Collins, 920 F.2d 1247, 1251-52, 1252 n.1 (Sth Cir.
1991)(discussing Texas cases). The judgment of the Eleventh Circuit conflicts with these cases.
In Arnold the Tenth Circuit held that 1989 amendments to the Oklahoma Prison
Overcrowding Emergency Powers Act, which excluded any prisoner denied parole from eligibility
for overcrowding-related “emergency time credits,” were ex post facto as applied to Arnold.
Arnold, 951 F.2d at 281, 283. The court, expressly disagreeing with the reasoning of an
Oklahoma appellate court, concluded there is no constitutionally significant distinction between
_ eligibility for good-time credits and eligibility for overcrowding-related credits; both shorten the
duration of confinement. /d. at 282-83. The only discernible purpose and effect of the 1989
exclusions from eligibility were to increase the duration of confinement of the retroactively
excluded offenders. Jd. at 283. For the Tenth Circuit, therefore, it is the effect of making
punishment for antecedent crimes more onerous than condemns the new law as ex post facto.
The Texas court's interpretation of the Ex Post Facto Clause is substantially similar. Rutledge,
S.W. 2d at 462.
The lowers court's analysis in this case, in contrast, strains to overlook the predictable and
intended effects of the 1992 law on the actual duration of incarceration. The court below first
10
avoids any analysis of the effects of the law by labeling it “procedural.” (Citing Dugger v.
Rodrick, 584 So.2d 2, (Fla. 1991), cert. denied, 502 U.S. 1037 (1992)). Then, ignoring the
undisputed facts that provisional release credits shorten the duration of confinement and advance
a mandatory release date, the court states wrongly that the credits are not tied to the original
sentence. Thus, in the Eleventh Circuit even the obvious effects of the new law on the
mandatory release date and the actual duration of imprisonment are deemed to be constitutionally
irrelevant.
All of this Court's ex post facto holdings, from Lindsey v. Washington, 301 U.S. 397
(1937), through Morales, direct the lower court to focus their analyses of sentencing-related laws
on the potential effects of the new law on the actual duration of confinement. Arnold and
Rutledge are faithful to the command; the judgment below is not. The rationale and result of the
lower court's disposition directly conflict with Arnold and Rutledge, introduce confusion and
instability into ex post facto doctrine, and materially harm numerous people.
The Court should grant certiorari to resolve the conflicts and reaffirm the applicability
of ex post facto constraints to retroactive adjustments to mechanisms surrounding the sentencing
process that increase the actual duration of confinement.
11
CONCLUSION
The petition for a writ of certiorari should be granted and a certificate of probable cause
issued. Furthermore, relief on the merits is also requested by an order restoring petitioners early-
release credits, revoked by the ex post facto violation herein.
ID # 169291
orth Hughey Avenue, Suite 417
ndo, Florida 32801-2229
(407) 648-6338
Counsel for Petitioner KENNETH LYNCE
12
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT | io
NO. 95-2773
ee
KENNETH LYNCE,
Petitioner~-Appellant,
versus
HAMILTON MATHIS, Superintendent;
ROBERT A. BUTTERWORTH, Attorney
General of the State of Florida;
HARRY K. SINGLETARY, JR., as
Secretary of the Florida Department
of Corrections,
Respondents-~Appellees.
Appeal from the United States District Court for the
Middle District of Florida
ORDER:
Appellant’s application for a certificate of probable cause is
Ki dbeke
DENIED.
STATES CIRCUIT JUDGE
Z SPN pee
Al %
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JUDGMENT IN A CIVIL CASE p
. . . OnsTarcT ri
United States Bistrict Court MIDDLE DISTRICT OF PLORIDA/ORLAMD pIVIsI0™
CASE TITLE OOCKET NUMBER
KENNETH LYNCE
V.
| HAMILTON MATHIS, et al
94-891-Civ-Orl-18
O- ry 1
>
NAME OF JUOGE SEwencraRRamwxxex TN UT
© Jury Verdict. This action came before the Court and a jury with the judicial officer named above presiding.
The issues have been tried and the jury has rendered its verdict.
Judge G. Kendall Sharp ° 5) i) 27. F(6
she tewet LV voles’
WPDecision by Court. This action came satuakerkeanng before the Court with the judge (megecxame) named
above presiding. Kee sewex have been tae OOheaE and a decision has been rendered.
SEE
IT IS ORDERED AND ADJUDGED
That the Petitioner,
Kenneth Lynce
take nothing and the
action be dismissed.
COPIES MAILED ate
Joel T. Remland, Esquire
Susan A. Maher, Esquire
‘a, wn Fk & ae
womenr @ ASS
c.eRer OaTE
DAVID L. EDWARDS May 10, 1995
revi oEruTy cic an
4
- ee
UNITED STATES DISTRICT COURT
85 MIDDLE DisTRICT OF FLORIDA
_ , ORLANDO DIVISION
‘KENNETH EYNCE
Petitioners,
-Vs- Case No. 94-891-Civ-Orl-18
HAMILTON MATHIS, et al.,
yy Respondents.
REPORT AND RECOMMENDATION
STATES DISTRICT COURT
I. Status
Petitioner initiated this action for habeas corpus relief pursuant to 28 U.S.C. § 2254 on
\eueus 18, 1994 (Doc. No. 1). Upon consideration of the petition, the Court ordered
ndents to show cause why the relief sought in the petition should not be granted.
, Respondents filed a reply to the petition in accordance with the Court's instructions and Rule 4
filed March 6, 1995). Petitioner alleged only one claim for relief, that the State’s retroactive
application of its provisional release credits statute was an ex post facto law in violation of Article
I, Section 10 of the United States Constitution.
II. Factual Background
Petitioner was convicted of attempted first-degree murder, armed burglary, and possession
of a firearm in the commission of a felony on April 14, 1986. He was sentenced to a term of
twenty two years imprisonment. Under the State’s provisional release credit statute in force at
l
of the Rules Governing Section 2254 Cases in the United States District Courts (Doc. No. 22, |
; dead eee
a
(Rew 882)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
KENNETH LYNCE,
Petitioners,
-v$- Case No. 94-891-Civ-Orl-18
HAMILTON MATHIS, et al.,
Respondents.
REPORT AND RECOMMENDATION
TO THE UNITED STATES DISTRICT COURT
I. Status
Petitioner initiated this action for habeas corpus relief pursuant to 28 U.S.C. § 2254 on
August 18, 1994 (Doc. No. 1). Upon consideration of the petition, the Court ordered
Respondents to show cause why the relief sought in the petition should not be granted.
Respondents filed a reply to the petition in accordance with the Court’s instructions and Rule 4
of the Rules Governing Section 2254 Cases in the United States District Courts (Doc. No. 22,
filed March 6, 1995). Petitioner alleged only one claim for relief, that the State’s retroactive
application of its provisional release credits statute was an ex post facto law in violation of Article
I, Section 10 of the United States Constitution.
Il. Factual Background
Petitioner was convicted of attempted first-degree murder, armed burglary, and possession
| of a firearm in the commission of a felony on April 14, 1986. He was sentenced to a term of
twenty two years imprisonment. Under the State’s provisional release credit statute in force at
| “EDERAL PUBLIC DEFENDER 1
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that time, he was eligible to accumulate credits to shorten his period of incarceration. Fla.Stat.
ch. 944.277 (1989). The provisional credits were only to be awarded during periods when the
prisoner population of the correctional system approached full capacity, and then only to inmates
not convicted of certain enumerated offenses or serving a mandatory minimum sentence. Fla. Stat.
ch. 944.277(1) (1989).
From the time of his sentencing to January 1991, Petitioner accumulated 1860 days of
provisional release credits. During the 1992 session, the Florida Legislature amended the
provisional release credit statute to exclude the award of credits to prisoners convicted of
attempted murder. Fla.Stat. ch. 944.277(1) (1992 Supp.). Petitioner’s provisional release date,
hastened by the 1860 days of credit previously awarded, was therefore set at October 1, 1992.
On that date, Petitioner was released from custody.
On December 29, 1992, Robert Butterworth, Attorney General of the State of Florida,
issued an opinion interpreting the 1992 amendment of Fla.Stat. ch. 944.277. 92 Op. Att’y Gen.
96 (1992). He found that the provisional release credit statute was adopted as a permissive
administrative means for relieving prison overcrowding. He also found that a footnote which had
restricted previous amendments to Fla.Stat. ch. 944.277 to prospective effect was not included
in the 1992 amendment. He therefore concluded that the 1992 amendment was intended to have
retroactive effect, which he believed precluded the award of any provisional release credits to a
prisoner convicted of murder.
Harry Singletary, Jr., Secretary of the Florida Department of Corrections, solicited a
further opinion from the Attorney General on the interpretation of the amended provisional release
statute. On December 31, 1992, the Attorney General clarified his previous opinion and
ew 882)
Suggested that provisional release credits awarded before the 1992 amendment of Fla.Stat. ch.
944.277 to inmates convicted of murder should be withdrawn. He also found that, while no court
decision compelled the Department of Corrections to recommit previously released prisoners, the
department could do so at its own discretion.
Petitioner’s provisional release credits were cancelled on January 4, 1993. The
Department of Corrections submitted an Affidavit for Retaking Prisoner to the Ninth Judicial
Circuit Court on May 3, 1993. On May 17, 1993, the Court issued an Order for Execution of
Sentence Imposed and Retaking of Prisoner. Petitioner was returned to incarceration on June 8,
1993. His prior release date of October 1, 1992 was cancelled and his tentative release date was
delayed until May 19, 1998.
IIT. Findings of Fact and Conclusions of Law
Petitioner contends that the cancellation of ns accumulated provisional release credits
pursuant to the 1992 amendment of Fla.Stat. ch.444.277, which caused a significant delay in his
tentative release date, is an ex post facto law in violation of Article I, Section 10 of the United
States Constitution. Respondents contend that provisional release credits were an administrative
tool to reduce prison overcrowding, not a mitigation of punishment. They also contend that the
Statute was merely procedural and therefore did not affect the magnitude of punishment imposed
for conviction of an offense. :
/ Article I, Section 10 of the United States Constitution states, "No State shall . . . pass any
. . » €X post facto Law." U.S. Const. art. I, § 10, cl. 1. The Framers intended the ex post facto
dazsn to be 2 safaguast tor tho gutta whtehi Cuehé tees dial tekieaes @» cial ae
warning of its effects and permit reliance until explicitly changed. Weaver v. Graham, 450 U.S.
2 ) eee
24, 28 (1981). The prohibition extends to any law “which imposes a punishment for an act which
was not punishable at the time it was committed; or imposes additional punishment to that then
prescribed." Weaver v. Graham, 450 U.S. at 28 (quoting Cummings v. Missouri, 71 U.S. (4
Wall.) 277, 325-26 (1867)). Two elements are required for a criminal or penal law to be
considered ex post facto: it must apply to events occurring before its enactment and it must
disadvantage the offender it affects. Jd. at 29; Lindsay v. Washington, 301 U.S. 397, 401 (1937).
However, legislation which satisfied both requirements would not violate the ex post facto
prohibition if the change it effected were merely procedural and did “not increase the punishment
nor change the ingredients of the offense or the ultimate facts necessary to establish guilt." Hopr
v. Utah, 110 U.S. 574, 590 (1884); Dobbert v. Florida, 432 U.S. 282, 293 (1977).
In Weaver v. Graham, 450 U.S. 24, 67 L.Ed.2d 17 (1981), the Supreme Court held
unconstitutional the application of the amended Florida good time gain-time statute to inmates
convicted before the effective date of the statute. The amendment decreased the number of days
of gain-time that an inmate could earn per month for good behavior. See Fla.Stat. ch. 944.27(1)
(1975), Fla.Stat. ch. 944.275(1) (1979). Although previously awarded gain-time was not
cancelled or reduced, the new gain-time statute was applied to all inmates in the prison system,
including those convicted before the enactment of the amendment. The State of Florida advanced
three arguments suggesting that the law was not ex post facto: first, it did not impair vested rights;
second, on its face, it applied only prospectively; and third, it did not worsen the conditions of
incarceration.
The Court rejected the first argument out of hand; vested rights have never been a
requirement for protection under the ex post facto clause, only under the contracts clause and the
due process clause. Weaver, 450 U.S. at 29. As to the second argument, even though the
amendment was prospective in form, it was retrospective in effect. “The critical question is
whether the law changes the legal consequences of acts completed before its effective date." Id.
3t 31. Prisoners incarcerated for previous conduct would have greater consequences attached to
those prior acts, and the law was therefore retrospective. The application to earlier offenders was
repugnant to the original meaning of the ex post facto clause because an inmate who considered
gain-time before entering a guilty plea would have calculated and relied upon a shorter sentence
under the then existing statute. Jd. at 32. Finally, the Court addressed whether the amendment
placed the prisoner in a worse position than the prior law. Because a prisoner had less
opportunity to shorten his sentence, he would have been materially harmed by the change. Id.
at 33. The Court did not consider Florida’s argument that the alteration was merely procedural,
for it substantively changed the gain-time available, not merely the method by which it was
assigned.
The Eleventh Circuit turned to the issue of gain-time after Florida again altered the
formula for its award. In Raske v. Martinez, 876 F.2d 1496 (11th Cir. 1989), cert. denied, 493
U.S. 993 (1989), the Court held unconstitutional a decrease of the opportunity to earn incentive
gain-time. The amended statute provided for increased good behavior gain-time but decreased
the amount of incentive gain-time that could be earned by diligent labor. See Fla.Stat. 944.275
(1982), Fla.Stat. ch. 944.275 (1983). The net effect for an inmate who labored diligently was
a decrease in available gain-time. The State of Florida made three closely related arguments as
to why the statute was not ex post facto: first, the granting of incentive gain-time was
discretionary, while the granting of good behavior gain-time was automatic; second, the granting
of incentive gain-time was discretionary because the duties which allowed an inmate to earn it
were a matter of legislative grace; and third, the increase in good behavior gain-time offset the
decrease in incentive gain-time.
The Court found that although an inmate had no right to gain-time, either good behavior
or incentive, the ex post facto clause has never required a vested right to be impaired to violate
the clause. Raske, 876 F.2d at 1499 n.5. In fact, the Court found that both incentive gain-time
and good behavior gain-time, which was held subject to the prohibition in Weaver, were
discretionary. Id. Not only did the State have discretion in determining whether good behavior
or incentive gain-time would be awarded, it used similar criteria in making the decision. There
was therefore no distinction between the two insofar as the ex post facto clause was concerned,
so the reasoning of Weaver applied to incentive gain-time. Jd. While the work an inmate
performed to earn incentive gain-time may have been a matter of legislative grace, if the State
afforded the inmate the opportunity to work, it was bound to reward the prisoner for his services
with at least as much gain-time as he would have earned at the time of his offense. Id. at i500.
Finally, although an inmate might not earn the maximum award of incentive gain-time (and was
eligible to earn more good behavior gain-time under the new statute), the denial of the opportunity
to do so made the punishment for the prisoner’s offense more onerous than when the offense was
committed.
In Hock v. Singletary, 41 F.3d 1470 (11th Cir. 1995), the Eleventh Circuit addressed the
1989 amendment of Florida’s control release statute, Fla.Stat. ch. 947.146 (1989). The goal of
the control release program, like that of provisional release credits, was to ease the overcrowding
of the state correctional system. The 1989 amendment of the control release statute transferred
responsibility for control of the prison population from the Florida Department of Corrections to
the Florida Parole Commission and altered prisoner eligibility. Prior to the amendment, prisoners
convicted of murder were eligible for control release; after the amendment, they were not.
The Court, reasoning in summary fashion, found that “any disadvantage suffered by the
petitioner does not affect punishment and therefore does not violate the Ex Post Facto Clause."
Hock, 41 F.3d at 1472. In contrast with the alterations in the good behavior gain-time statutes
which had been held unconstitutional in Weaver and Raske, it found that the control release statute
was procedural, not substantive. Jd. The Court agreed with the Florida Supreme Court's
interpretation of the ex post facto clause, in which it had earlier held that Fla.Stat. ch. 944.277
“was procedural in nature, [and] not directed toward the traditional purposes of punishment."
Dugger v. Roderick, 584 So.2d 2 (Fla. 1991), cert. denied sub nom. Roderick v. Singletary,
_U.S.__, 116 L.Ed.2d 790 (1992). It therefore held that retroactive application of the
amendment did not run afoul of the ex post facto clause. |
The Eleventh Circuit then stated that the amendment to the control release statute, unlike
changes in good behavior and incentive gain-time statutes, did not deny inmates the ability to
reduce their terms of confinement. Hock, 41 F.3d at 1472. The control release statute permitted
former was independent of an prisoner’s labors, the latter the fruit of it. The Court also held that
good behavior gain time could be predicted and accounted for in entering into a plea bargain and
sentencing but control release could not. Id. at 1473.
Although the Eleventh Circuit’s opinion is sparsely reasoned, it resolyes the issues at
question. Provisional release credits were merely an earlier alternative to control release as a
AO 72A
(Rev. 8/82)
means to relieve prison overcrowding. In fact, Roderick, the Florida case upon which the
Eleventh Circuit relies heavily, dealt with provisional release credits, not control release.
Therefore, in all likelihood, were the Eleventh Circuit to have faced the issue of provisional
release credits under Fla.Stat. ch. 944.277 instead of the control release statute, it would have
held the 1992 amendment not to violate the ex post facto clause. Accordingly, the undersigned
respectfully recommends that the Petition for Writ of Habeas Corpus filed herein be DENIED and
that the case be DISMISSED with prejudice.
Failure to file written objections to the proposed findings and recommendations contained
in this report within ten (10) days from the date of its filing shall bar an aggrieved party from
attacking the factual findings on appeal.
Respectfully recommended in Orlando, Florida on March 14, 1995.
—
f
j e K
LAM kK AL AH#4
i DAVID A. BAKER
UNITED STATES MAGISTRATE JUDGE
Copies furnished to:
Honorable G. Kendall Sharp
Joel T. Remiand
Susan A. Maher
COPIES MAILED
ON i= 1998
BY ve
Deputy Clerk
Section 921.001
Florida Statutes (Supp. 1986)
[1986 Fla. Laws ch. 86-273;
1983 Fla. Laws ch. 83-87, § 2]
921.001 Sentencing Commission.—
(1) The provision of criminal penalties and of
limitations upon the application of such penalties is a matter
of predominantly substantive law and, as such, is a matter
properly addressed by the Legislature. The Legislature, in
the exercise of its authority to establish sentencing criteria
and to provide for the imposition of criminal penalties, has |
determined that it is in the best interest of the state to
develop, implement, and revise a uniform sentencing policy
in cooperation with the Supreme Court. In furtherance of |
this cooperative effort, there is created a Sentencing
Commission which shall be responsible for the initial |
development of a statewide system of sentencing guidelines. |
After final development of a sentencing guidelines system by
the Supreme Court, the commission shall evaluate these
guidelines periodically and recommend such changes on a
continuing basis as are necessary to ensure certainty of
punishment as well as fairness to offenders and to citizens of
the state. |
(2)(a) The commission shall be composed of 15 |
members, consisting of: two members of the Senate to be |
appointed by the President of the Senate; two members of the
House of Representatives to be appointed by the Speaker of
the House of Representatives; the Chief Justice of the
Supreme Court or a member of the Supreme Court
designated by the Chief Justice; three circuit court judges and
one county court judge to be appointed by the Chief Justice
of the Supreme Court; and the Attorney General or his
27a
designee. The following inembers shall be appointed by the
Governor: one state attorney recommended by the Florida
Prosecuting Attorneys Association, one public defender
recommended by the Public Defenders Association; one
private attorney recommended by the President of the Florida
Bar: and two persons of the Governor's choice. The Chief
Justice or the member of the Supreme Court designated by
the Chief Justice shall serve as chairman of the commission.
(b) The members of the commission appointed by
the Governor, the President of the Senate, and the Speaker
of the House of Representatives shall serve 2-year terms,
except that the initial appointees shall serve until January |,
1984. The members appointed by the Chief Justice of the
Supreme Court shall serve at his pleasure.
(c) Membership on the commission shall not
disqualify a member form holding any other public office or
from being employed by a public entity. The Legislature
finds and declares that the commission serves a state, county,
and municipal purpose and that service on the commission 1s
consistent with a member’s principal service in a public
office or in public employment.
(d) Members of the commission shall serve
without compensation but shall be entitled to be reimbursed
for per diem and travel expenses as provided for in s.
112.061
(e) The office of the State Courts Admunistrator
shall act as staff for the commission and provide all
necessary data collection, analysis, and research and support
services.
(3) Following the initial development of statewide
sentencing guidelines by the court, the commission shall meet
annually or at the call of the chairman to review sentencing
practices and recommend modifications to the guidelines. In
establishing or modifying the sentencing guidelines, the
28a
commission shall take into consideration current sentencing
and release practices and correctional resources, including the
capacities of local and state correctional facilities, in addition
to other relevant factors. For this purpose, the commission
is authorized to collect and evaluate data on sentencing
practices in the state from each of the judicial circuits.
(4)(a) Upon recommendation of a plan by the
commission, the Supreme Court shall develop by September
1, 1983, statewide sentencing guidelines to provide trial court
judges with factors to consider and utilize in determining the
presumptively appropriate sentences in criminal cases. The
statewide sentencing guidelines shall be implemented by
October 1, 1983, unless the Legislature affirmatively delays
the implementation of such guidelines prior to October 1,
1983. The guidelines shall be applied to all felonies, except
capital felonies, committed on or after October 1, 1983, and
to all felonies, except capital felonies and life felonies,
committed prior to October i, 1983, for which sentencing
occurs after such date when the defendant affirmatively
selects to be sentenced pursuant to the provisions of this act.
(b) The commission shall, no later than October
l of each year, make a recommendation to the members of
the Supreme Court, the President of the Senate, and the
Speaker of the House of Representatives on the need for
changes in the guidelines. Upon receipt of such
recommendation, the Supreme Court may within 60 days
revise the statewide sentencing guidelines to conform them
with all or part of the commission recommendation.
However, such revision shall become effective only upon the
subsequent adoption by the Legislature of legislation
implementing the guidelines as then revised.
, (5) Sentences imposed by trial court judges must
be in all cases within any relevant minimum and maximum
sentence limitations provided by statute and must conform to
29a
all other statutory provisions. The failure of a trial court to
impese a sentence within the sentencing guidelines shall be
subject to appellate review pursuant to chapter 924. The
extent of departure from a guideline sentence shall not be
subject to appellate review.
(6) The sentencing guidelines shall provide that
anv sentences imposed outside the range recommended by the
guidelines be explained in wrung by the trial court judge.
(7) The Sentencing Commission and the office of
the State Courts Admunuistrator shall conduct ongoing
research on the impact of sentencing guidelines adopted by
the commission on sentencing practices, the use of
imprisonment and alternatives to imprisonment, and plea
bargaining. The commission, with the aid of the office of
the State Courts Administrator, the department and the Parole
and Probation Commission, shall estimate the impact of any
proposed sentencing guidelines on future rates of
incarceration and levels of prison population. Such estimates
shall be based in part on historical data of sentencing
practices which have heen accumulated by the office of the
State Courts Administrator and on department records
reflecting average time served for offenses covered by the
proposed guidelines. Projections of impact shall be reviewed
by the commission and made available to other appropriate
agencies of state government, including the Legislature, by
December 15 of each year.
(8) A person convicted of crimes committed on or
after October 1, 1983, or any other person sentenced
pursuant to sentencing guidelines adopted under this section
shall be released from incarceration only:
(a) Upon expiration of his sentence,
(b) Upon expiration of his sentence as reduced by
accumulated gain-time, or
(c) As directed by an executive order granting
30a
clemency
The provisions of chapter 947
person
3la
snail
not De applied to such
Section 921.001(9)
Florida Statutes (1993)
[1993 Fla. Laws ch. 93-406, § 5]
921.001 Sentencing Commission and sentencing
guidelines generally .—
(9)(a) The Sentencing Commission and the office of
the State Courts Admunistrator shail conduct ongoing
research on the impact of the sentencing guidelines, the use
of imprisonment and alternatives to imprisonment, and plea
bargaining. The commission, with the aid of the office of
the State Courts Administrator, the Department of
Corrections, and the Parole Commission, shall estimate the
impact of any proposed changes to the sentencing guidelines
on future rates of incarceration and levels of prison
population, based in part on historical data of sentencing
practices which have been accumulated by the office of the
State Courts Administrator and on Department of Corrections
records reflecting average time served for offenses covered
by the proposed changes to the guidelines. The commission
shall review the projections of impact and shall make them
available to other appropriate agencies of state government
including the Legislature, by October | of each year
(b) On or after January 1, 1994, any legislation
which
Creates a felony offense;
2 Enhances a misdemeanor offense to a felony
offense;
; Moves a felony offense from a lesser offense
severity level to a higher offense severity level in the offense
severity ranking chart in s. 921.0012; or
. Reclassifies an existing felony offense to a
greater felony classification
AO
must provide that such a change result in a net zero sum
impact in the overall prison population, as determined by the
Criminal Justice Estimating Conference, unless the legislation
contains a funding source sufficient in its base or rate to
accommodate such change or a provision which specifically
abrogates the application of this paragraph
History.—ss. 1,2,3, ch. 82-145; s. 2, ch. 83-87; s. 176, ch. 83-216
s. 2. ch. 84-328: s. 1, ch. 86-273; s. 2, ch. 87-110; s. 5, ch. 88-96; s
8. ch. 88-122: s. 2, ch. 88-131; s. 3, ch. 89-526; s. 6, ch. 90-211; s. 69
ch. 91-110: s. 1, ch. 91-239; s. 1, ch. 92-135; s. 5, ch. 93-406
‘Note. —Section 5, Ch. 93-406, provides for applicability to sentencing
for offenses committed on or after January 1, 1994
42a
Section 921.001(10)
Florida Statutes (1987)
[1987 Fla. Laws ch. 87-110, § 2]
(10) A person convicted of crimes committed on or
after October 1, 1983, or any other person sentenced
pursuant to sentencing guidelines adopted under this section
shall be released from incarceration only
(a) Upon expiration of his sentence;
(b) Upon expiration of his sentence as reduced by
accumulated gain-time; or
(c) As directed by an executive order granting
clemency
The provisions of chapter 947 shall not be applied to such
person
History. - ss. 1, 2, 3, ch. 82-145: s. 2. ch. 83-87: s. 176, ch. 83-216
s. 2. ch. 84-328: s. 1. ch. 86-273: s. 2. ch. 87-11¢
33a
a7
Section 921.001(11)
Florida Statutes (Supp. 1988)
[1988 Fla. Laws ch. 88-122, § 8)
(11) A person who is convicted of a crime
committed on or after October 1, 1988, shall be released
from incarceration only:
(a) Upon expiration of his sentence,
(b) Upon expiration of his sentence as reduced by
accumulated gain-tme; |
(c) As directed by an executive order granting
clemency; |
(d) Upon attaining the provisional release date; or
(e) Upon placement in a conditional release
program pursuant to s. 947.1405.
History.— ss. 1, 2, 3, ch. 82-145: s. 2, ch. 83-87; s. 176, ch. 83-216;
s. 2. ch. 84-328; s. 1, ch. 86-273; s. 2, ch. 87-110; s. 5, ch. 88-96; s.
8. ch. 88-122; s. 2, ch. 88-131
37a
A8
Section 944.276
Florida Statutes (1987)
[1987 Fla. Laws ch. 87-2, § 1]
‘944.276 Administrative gain-time.—
(1) Whenever the inmate population of the
correcuonal system reaches 98 percent of lawful capacity as
defined in s. 944.598, the secretary of the Department of
Corrections shall certify to the Governor that such condition
exists. When the Governor acknowledges such certification
in writing, the secretary may grant up to a maximum of 60
days administrative gain-time equally to all inmates who are
camming incentive gain-time, unless such inmates:
(a) Are serving a minimum mandatory sentence
under s. 775.082(1) or s. 893.135;
(b) Are serving the minimum mandatory portion
of a sentence enhanced by s. 775.087(2);
(c) Were convicted of sexual battery or any sexual
offense specified in s. 917.012(1) and have not successfully
completed a program of treatment pursuant to s. 917.012; or
(d) Were sentenced under s. 775.084.
(2) The authority granted to the secretary shall
continue until the inmate population of the correctional
system reaches 97 percent of lawful capacity, at which time
the authority granted to the secretary shall cease, and the
secretary shall notify the Governor in writing of the cessation
of such authority
History. - ss. 1, 2, ch. 87-2
‘Note. - Expires effective July 1, 1988, pursuant to s. 2, ch. 87-2, and
is scheduled for review by the Legislature before that date
32a
A9
Section 944.277
Florida Statutes (Supp. 1988)
[1988 Fla. Laws ch. 88-122, § 5]
944.277 Provisional credits.—
(1) Whenever the inmate population of the
correctional system reaches 97.5 percent of lawful capacity
as defined in s. 944.096, the Secretary of Corrections shall
certify to the Governor that such condition exists. When the
Governor acknowledges such condition in writing, the
secretary may grant up to 60 days of provisional credits
equally to each inmate who is earning incentive gain-time,
except to an inmate who:
(a) Is serving a sentence which includes a
mandatory minimum provision for a capital offense or drug
trafficking offense and has not served the number of days
equal to the mandatory minimum term less any jail-time
credit awarded by the court; |
(b) Is serving the mandatory minimum portion of
a sentence enhanced under s. 775.087(2);
(c) Is convicted, or has been previously convicted,
of committing or attempting to commit sexual battery, incest,
or a lewd or indecent assault or act; |
(d) Is convicted, or has been previously convicted,
of committing or attempting to commit assault, aggravated
assault, battery, or aggravated battery, and a sex act was
attempted or completed during commission of the offense;
(e) Is convicted, or has been previously convicted,
of committing or attempting to commit kidnapping, burglary,
or murder, and the offense was committed with the intent to
commit sexual battery; .
(f) Is convicted, or has been previously convicted,
of committing or attempting to commit false imprisonment
upon a child under the age of 13 and, in the course of
34a
Al0
committing the offense, the inmate committed aggravated
child abuse, sexual battery against the child; or a lewd,
lascivious, or indecent assault or act upon or in the presence
of the child; or
(g) Is sentenced, or has previously been sentenced
under s. 775.084, or has been sentenced at any time in
another jurisdiction as a habitual offender.
(2) The Secretary’s authority to grant provisional
credits in increments not exceeding 60 days will continue
until the inmate population of the correctional system reaches
97 percent of lawful capacity, al which time the authority
granted to the secretary will cease, and the secretary shall
notify the Governor in wrung of the cessation of such
authority.
(3) At such time as provisional credits are granted,
the Department of Corrections shall establish a provisional
release date for each eligible inmate incarcerated, which will
be the tentative release date less any provisional credits
granted.
(4) Any eligible inmate who is incarcerated on the
effective date of an award of provisional credits shall receive
such credits. Any inmate who is under any type of release
supervision program of the department is not eligible for an
award of provisional credits.
(5) Any inmate who is serving one Or more
sentences of imprisonment imposed as a result of an offense
that occurred on or after July 1, 1988, and who receives 30
or more days of provisional credits must be released into the
provisional release supervision program on his provisional
release date, unless such inmate is also serving a sentence for
an offense that occurred before July 1, 1988. Inmates who
are released into the provisional release supervision program
are not eligible for any additional gain-time. If an inmate
has received a term of probation or community control to be
35a
served after his release from incarceration, the period of
probation or community control supervision must be
substituted for the period of supervision under the provisional
release supervision program.
(6) The terms and conditions of provisional release
supervision must be specified in writing, and a copy must be
given to the inmate at the time of his release from
incarceration. The term of supervision must be equal to the
number of provisional credits accrued, but may not exceed
90 days unless extended as provided in subsection (7).
(7) If an inmate violates any term or conditio of
provisional release supervision, the Department of
Corrections may take any of the following actions:
(a) Continue provisional release supervision.
(b) Extend the term of supervision not to exceed
the total number of provisional credits the inmate has
accumulated.
(c) Terminate the provisional release supervision
and return the inmate to prison. If an inmate is returned to
prison, credits accumulated as of the date of release to the
provisional release supervision program may be canceled as
prescribed by department rule.
(8) If an inmate absconds from provisional release
supervision, the Department of Corrections may issue a
warrant for his arrest as provided by s. 944.405. The failure
of an inmate to report to the designated parole and probation
office within 10 days after his release from incarceration
constitutes a violation of the provisional release supervision
program and will result in issuance of a warrant for arrest of
the inmate.
(9) The Department of Corrections shall adopt
rules to implement the provisional release supervision
program.
History.—s. 5, ch. 88-122.
36a
Section 944.277(1)
Florida Statutes (Supp. 1992)
[1992 Fla. Laws ch. 92-310, § 12]
944.277 Provisional Credits.—
(1) Whenever the inmate population of the
correctional system reaches 98 percent of lawful capacity, the
Secretary of Corrections shall certify to the Governor that
such condition exists. When the Governor acknowledges
such condition in writing, the secretary may grant up to 60
days of provisional credits equally to each inmate who is
earning incentive gain-time, except to an inmate who:
(a) Is serving a sentence which includes a
mandatory minimum provision for a capital offense or drug
trafficking offense and has not served the number of days
equal to the mandatory minimum term less any jail-time
credit awarded by the court;
(b) Is serving the mandatory minimum portion of
a sentence enhanced under s. 775.087(2);
‘(c) ‘Is convicted, or has been previously convicted,
of committing or attempting to commit sexual battery, incest,
or any of the following lewd or indecent assaults or acts
masturbating in public; exposing the sexual organs in a
perverted manner; or nonconsensual handling or fondling of
the sexual organs of another person;
(d) Is convicted, or has been previously convicted,
of committing or attempting to commit assault, aggravated
assault, battery, or aggravated battery, and a sex act was
attempted or completed during commission of the offense;
(e) Is convicted, or has been previously convicted,
of committing or attempting to commit kidnapping, burglary,
or murder, and the offense was committed with the intent to
commit sexual battery or a sex act was attempted or
38a
All
completed during commission of the offense; |
(f) Is convicted, or has been previously convicted,
of committing or attempting to commit false imprisonment
upon a child under the age of 13 and, in the course of
committing the offense, the inmate committed aggravated
child abuse; sexual battery against the child; or a lewd,
lascivious, or indecent assault or act upon or In the presence
of the child; |
(g) Is sentenced, or has previously been sentenced,
or has been sentenced at any time unc.” Ss. 775.084, or has
been sentenced at any time in another jurisdiction as a
habitual offender; | |
(h) Is convicted, or has been previously convicted,
of committing or attempting to commit assault, aggravated
assault, battery, aggravated battery, kidnapping,
manslaughter, or murder against an officer as defined in Ss.
943. 10(1),(2),(3),(6),(7),(8), oF (9); or against a state
attorney or assistant state attorney, OF against a justice or
judge of a court described in Article V of the State
Constitution; or against an officer, judge, or State attorney
employed in a comparable position by any other jurisdiction,
(i) Is convicted, or has been previously convicted,
of committing or attempting to commit murder in the first,
second, or third degree under s. 782.04(1),(2),(3), or (4); or
has ever been convicted of any degree of murder in another
jurisdiction; or 7
(Gj) Is serving a concurrent sentence in another
state or federal jurisdiction.
In making provisional credit eligibility determinat.ons, the
department may rely on any document leading to oF
generated during the course of the criminal proceedings
involving the inmate, including, but not limited to, any
39a
resentenc cel
p tence or postsentence investigation or any information
S c
History.—s. 5, ch. 88-122; s. 4
| ) ch. 89-100; s. 5, ch. 89-526; s. 5
ch 89-951 s. 2, ch. 90-77: s. 1, ch. 90-186; s. 14, ch 90-337 |
ch. 91-280; s. 12, ch. 92-310 | fa
‘Note. —
A
Section 3, ch. 90-186, provides that “[a] person who is
sare bee has been previously convicted, of commutting prior to the
po nrg of this act a lewd or indecent assault or act specified in
— paste l nn Se is Statutes, is eligible for provisional credits
poe _— is convicted or has been previously convicted, of
— pe heer to commit a lewd or indecent assault or act as
nat g in public, exposing the sexual organs in a
osm = or nonconsensual handling or fondling of the sexual
: — — a eligible for provisional credits. °
~ pant 337, provides that “[e}ffective July 1, 1990,
dl —_— of a lewd or indecent act not listed in s
nee Florida Statutes, shal] receive retroactive benefit of all
ae chogee awards made during the service of his sentence
t be is not otherwise ineligible for, or excluded from
receiving such an award.” 7
_ Chapter 90-337 was signed into law on July
40a
Section 944.598
Florida Statutes (Supp. 1986)
[1986 Fla. Laws ch. 86-46, § 1]
944.598 Emergency release of prisoners.—
(1) The Department of Corrections shall advise the
Governor of the existence of a state of emergency in the state
correctional system whenever the population of the state
correctional system exceeds 99 percent of the lawful capacity
of the system for males or females, or both. In conveying
this information, the secretary of the department shall certify
the rated design capacity, maximum capacity, lawful
capacity, system maximum capacity, and current population
of the state correctional system. When the Governor verifies
such certification by letter, the secretary shall declare a state
of emergency.
(2) Following the declaration of a stale of
emergency, the sentences of all inmates in the system who
are eligible to carn gain-time shall be reduced by the credit
of up to 30 days gain-time, in 5-day increments, as may be
necessary to reduce the inmate population to 98 percent of
lawful capacity of the system.
(3) If a state of emergency still exists 15 days
after the credit of gain-time pursuant to subsection (2), the
secretary of the department and the Parole and Probation
Commission, as appropriate to their respective functions,
shall authorize, prior to scheduled release by parole, gain-
time, or expiration of sentence, the early termination of
incarceration of those inmates confined in state correctional
facilities and serving sentences of 3 years or less, unless
sentenced pursuant to S. 775.087 or s. 893.135, who are
within the last 60 days prior to release by parole, gain-time,
or expiration of sentence. The secretary and the commission
24a
Al2
shall release such inmates by applying, in 5-day increments,
credit for time served to all in this category
(4) Within 15 days after the declaration of a state
of emergency, the department shall supply the commission
with the names of those inmates in the following categories,
who shall be considered for compulsory conditional release:
(a) Any inmate confined in a state correctional
facility with a sentence of 3 years or less, unless serving a
mandatory minimum sentence, who is within the last 6
months prior to his release.
(b) Any inmate confined in a state correctional
facility with a sentence of more than 3 years but less than 8
years, unless serving a mandatory minimum sentence, who
is within the last year prior to his release.
(c) Any inmate confined in a state correctional
facility with a sentence of 8 years or more, unless serving a
mandatory minimum sentence, who is within the last 18
months prior to his release.
As used in this subsection, the term “compulsory conditional
release” means a release from incarceration by commission
action specifying the terms of release, including the period of
time the person is subject to such conditions as the
commission determines and subject to supervision as if on
parole, but in no event may such supervision extend beyond
the maximum term or terms for which he was actually
sentenced. The commission shall consider all inmates not
otherwise ineligible for parole who have maintained
Satisfactory institutional behavior and who are not serving a
term of imprisonment for any “forcible felony” as defined in
s. 776.08, for drug trafficking under s. 893.135, or as a
habitual felony offender under s. 775.084.
(5) A violation of the terms or conditions of a
compulsory conditional release pursuant to subsection (4)
25a
eased liable to arrest and return to
fs ™ :
rison to serve out the term for which he was =
ase
laments an offender whose compulsory conditional —_*
, i mission,
discretion of the com
is revoked may, at the . Ps
credited with any poruon of his time he has ae
served while on release. For the purposes of this section, ©
i 947.22,
the provisions of Ss
easee shall be subject t0
a 23. and 947.26, as though such releasee were on parole
(6) The authority granted in this secuon shall
ease whenever the secretary certifies to the Governor —
the level of inmate population has remained at less than
: : ve
percent of the lawful capacity of the system for 5 consecutl
days
may render the person rel
(7) As used in this section, the term sii
(a) "State correctional system meas the system
as defined in s. 944 02.
(b) "Lawful capacity” of the
tem means the total capacity of all institutions and
sys )
facilities in the prison system 4s determined either by the
Legislature or by the courts
state correctional
History. - ss. 3, 5, ch 83-131: s. 1, ch. 86-46
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