Petitioners Brief — Lynce v. Mathis

—

sii upreme Court, U.S.

er ert soe

No. 95-7452 JUL 12 1996

ee, |

In THE |

Supreme Court of the Anited States

OCTOBER TERM, 1996

KENNETH LYNCE,

Petitioner,

Vv.

HAMILTON MATHIS, ROBERT BUTTERWORTH,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

BRIEF OF PETITIONER

Of Counsel: a H. JaY STEVENS

CARTER G. PHILLIPS JOEL T. REMLAND *

PauL A. HEMMERSBAUGH Federal Public Defender

SIDLEY & AUSTIN Middle District of Florida

1722 Eye Street, N.W. 80 N. Hughey Avenue

Washington, D.C. 20006 Suite 417

(202) 736-8000 Orlando, FL 32801

(407) 648-6338

Counsel for Petitioner

July 12, 1996 * Counsel of Record

QUESTION PRESENTED

Whether the retroactive application of amended Florida

penal statute § 944.277. (1992) violates the Ex Post Facto

Clause of the United States Constitution by withdrawing

early release credits previously awarded to petitioner under

the pre-amendment version of the statute, where that with-

drawal was based solely upon petitioner’s 1985 offense of

conviction.

TABLE OF CONTENTS

CONSTITUTIONAL AND STATUTORY PROVI-

STATEMENT OF THE CASE... sis

SUMMARY OF ARGUMENT...

I. THE 1992 AMENDMENT TO § 944.277 (the

“1992 Act”), WHICH RETROACTIVELY

WITHDREW PROVISIONAL RELEASE

CREDITS FROM FLORIDA PRISONERS

AFTER THOSE CREDITS WERE AWARDED,

VIOLATED THE EX POST FACTO CLAUSE

BY INCREASING PETITIONER’S PUNISH-

MENT FOR CRIMES AFTER THEIR COM-

SS Se aes

A. As Applied to Petitioner, the 1992 Act Vio-

lated the Ex Post Facto Clause by Increasing

Retroactively the Punishment for His Crime

After Its Commission and Returning Him to

Prison for an Additional Five aaa

B. Morales’ Refinement of the Lindsey-W eaver-

Miller Rule Does Not Change the Result in

aaa at icles ieasees ;

10

10

12

16

iv

TABLE OF CONTENTS—Continued

C. Provisional Release Credits and Other Early

Release Credits Are an Integral Part of the

Punishment Attached to Petitioner’s Crime

and a Critical Determinant of the Length of

D. The Retroactive Offense-Based Exclusions

Created by the 1992 Act Undermine the Fun-

damental Interests the Ex Post Facto Clause

Is Designed to Protect...

E. At the Time of His Plea and Sentencing,

Petitioner Reasonably Should Have Expected

That He Would Benefit from the Award of

Provisional Release Credits te

II. THE COURT BELOW ERRONEOUSLY CHAR-

ACTERIZED § 944.277 AS A PROCEDURAL

ST snatvewtere~tedineainienieeine eee ———

A. The 1992 Act Is Not a Procedural Law, Be-

cause It Increased the Punishment Attached

to Certain Crimes ae OE Se

B. Florida’s Purpose in Adopting the 1992 Act

Is Irrelevant to the Determination of Whether

the Statute Is Procedural... pene ee

ES REESE

19

32

v

TABLE OF AUTHORITIES

CASES Page

Arnold Vv. Cody, 951 F.2d 280 (10th Cir. 1991)... 15

— Vv. Attorney General, 81 F.3d 1235 (3d Cir.

RR EE ete eee 8 ellie AN eels cae aaa 33

Beazell v. Ohio, 269 U.S. 167 (1925)... 10, 30

Calamia V. Singletary, 115 S. Ct. 1995 (1995) 29

Calder v. Bull, 3 U.S. (3 Dall.) 386 EN 10, 11

California Dep’t of Corrections Vv. Morales, 115

TS kil ea ai lal aR passim

IR aid Re ao ts cell 1, 22, 32

Eady Vv. Florida, 622 So. 2d 61 (Fla. Ist Dist, Ct.

ii ASSES, a i li ill ll 29

Griffin V. Singletary, 688 So. 2d 500 (Fla. 1994) 7

U.S. 827 (1990) - eriahtinnignein 25

Landgraf v. USI Film Prods., 114 S. Ct. 1483

ST ° sbibeetumsssiimenitese. . 14, 25

Lindsey v. Washington, 301 U.S. 397 (1987) 9, 12, 13. 16

Malloy v. South Carolina, 237 U.S. 180 (1915) 4

Miller v. Florida, 482 U.S. 423 (1987) passim

Papasan V. Allain, 478 U.S. 265 (1986) Tak 2

Raske Vv. Martinez, 876 F.2d 1496 (11th Cir.),

cert. denied, 493 U.S. 993 (1989) 27, 28

Schall v. Martin, 467 U.S. 253 (1984) 7

Warden V. Marrero, 417 U.S. 653 (1974) 12,19

Weaver Vv. Graham, 450 U.S.24 (1981) ts passim

CONSTITUTIONS, STATUTES AND RULES

U.S. Const. art. I, § 10, el. 1 a

vi

TABLE OF AUTHORITIES—Continued

Page

The Correctional Reform Act of 1988, 1983 Fla.

Laws ch. 83-131 (codified in part at § 944.598,

I 20, 21

§ 775.082, Fla. Stat. (1985)... 20

§ 921.001, Fla. Stat. (1968)... ttti‘Ct~S 21

§ 921.001, Fla. Stat. (1985) _. latealatecieemad deel 21

$§ 921.001-921.005, Fla. Stat. (1985) . ES SAE Sed 20

§ 921.001, Fla. Stat. (Supp.1988). sts 5, 22

§ 921.001, Fla. Stat. (Supp.1992) i tts 5

§ 944.276, Fla. Stat. (1965)... tti(i‘;C;CCCS 4

§ 944.275, Fla. Stat. (1987)... sts 22, 23

§ 944.275, Fla. Stat. (1993). tsi 27

§ 944.276, Fla. Stat. (1987)... 3,4

§ 944.277, Fla. Stat. (Supp.1988). i tits passim

§ 944.277, Fla. Stat. (1989) ssw aeiaiadinl pat Ms 4, 23

§ 944.277, Fla. Stat. (Supp.1992).. 4,5, 18

§ 944.278, Fla. Stat. (1998)... = tti‘Cts—CS 3

§ 944.598, Fla. Stat. (1983). PMD: oh 3

§ 944.598, Fla. Stat. (1985)... tti‘—tiCsS 3

§ 944.598, Fla. Stat. (Supp.1986).. ss —s 3

Fila. R. Crim. P. 3.701(b) (5) (1988, 1985)... 21

Fla. R. Crim. P. 3.701 (1985) (reprinted in The

Florida Bar: Amendment to Rules of Criminal

Procedure (3.701, 3.988—Sentencing Guidelines),

468 So. 2d 220 (Fla. 1985)) ..——ss—sCtstéi‘“—sSCS 21

OTHER AUTHORITIES

Senate Staff Analysis and Economic Impact State-

ment for SB 644 (May 24,1983) .s—s—tsi—S— 20

Senate Staff Analysis and Economic Impact State-

ment for SB 3A (Feb. 4, 1987)... —is—s—sS 20

Senate Staff Analysis and Economic Impact State-

ment for SB 210 (rev. Mar. 7, 1989) sss 21

Corrections Overcrowding Task Force, Final Re-

port and Recommendations (1983) (“COTF Re-

IES ane era Aer. ele 21

Mark Dykstra, Apart from the Crowd: Flerida’s

New Prison Release Program, 14 Fla. St. U. L.

I I ici 28

vii

TABLE OF AUTHORITIES—Continuved

The Federalist No. 44 (James Madison) ==

The Federalist No. 84 (Alexander Hamilton) _

Samuel Jacobson, Sentencing Guidelines, 57 Fla.

I

Jim Smith, Fla. Att’y Gen., A Major Revision of

the System is Needed (in Jacobson, Sentencing

Guidelines (1983)) PE Sk SS

Wilda L. White, “New State Policy Shatters Freed

Convict’s New Life,” Miami Herald 1A —_ 8,

RS BOS Rey Re ee a Oe Ee eee

IN THE

Supreme Court of the United States

OCTOBER TERM, 1996

No. 95-7452

KENNETH LyYNCE,

» Petitioner,

HAMILTON MATHIS, ROBERT BUTTERWORTH,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

BRIEF OF PETITIONER

OPINIONS BELOW

The order of the court of appeals denying petitioner’s

Application for a Certificate of Probable Cause (J.A. 66)

is unreported. The orders of the district court denying

petitioner’s Petition for Writ of Habeas Corpus and Ap-

plication for a Certificate of Probable Cause (J.A. 64, 65)

are unreported.

JURISDICTION

The judgment of the court of appeals was entered on

October 16, 1995. J.A. 66. The petition for writ of

certiorari was filed on January 10, 1996 and was granted

on May 13, 1996. This Court has jurisdiction under 28

U.S.C. § 1254(1).

2

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

1. The Ex Post Facto Clause of the United States

Constitution, Article I, Section 10, clause 1, provides in

pertinent part: “No State shall . . . pass any. . . ex post

facto law... .”

2. The provisions of § 944.277, Fla. Stat. (Supp.

1992) are set out in Appendix A. The provisions of

§§ 921.001, 944.275, 944.276, 944.277, 944.278, and

944.598, Fla. Stat., in all of their relevant versions, as

well as § 775.082, Fla. Stat. (1985) and Fla. R. Crim. P.

3.701 (1985), are lodged under separate cover with the

Court.

STATEMENT OF THE CASE

1. On April 14, 1986, petitioner Kenneth Lynce

pleaded nolo contendere to attempted first degree murder

and other offenses and was sentenced to 22 years in

Florida state prison. J.A. 3, 33, 53.’

Between 1983 and 1993, Florida statutes authorized

the Florida Department of Corrections to make over-

crowding “early release” credits available to eligible in-

mates upon an executive finding that the prisons had

reached a specified percentage of lawful capacity. See

1 The crimes occurred on October 27, 1985. See Lodged Docu-

ments at 144-45. Petitioner was charged on April 7, 1986 and

sentenced on April 14, 1986. /d. Petitioner has lodged with the

Court copies of public documents containing facts subject to

judicial notice, but not included in the Joint Appendix. See Papasan

v. Allain, 478 U.S. 265, 268 n.1 (1986) (Court may take notice of

items in public record). The documents lodged with the Court are

cited as “Lodg. Doc. ——.”

Later, in 1993, petitioner pleaded nolo contendere to a separate

offense and was sentenced to serve 4 years concurrent with his

22-year term. However, the 22-year term controls the duration of

his incarceration. See J.A. 34. There is no dispute that, with his

1860 days of provisional] release credits, petitioner would be entitled

to immediate release. See J.A. 34, 50-52.

3

§ 944.598, Fla. Stat. (1983); § 944.276, Fla. Stat.

(1987); § 944.277, Fla. Stat. (Supp. 1988). On the

date of his offense, petitioner was statutorily eligible for

early release credits conditioned on good behavior and

prison overcrowding, which at that time were called emer-

gency gain-time. § 944.598, Fla. Stat. (1985).?_ During

his incarceration, petitioner became successively eligible

under Florida law for early release credits that supplanted

but were the substantial equivalent of emergency gain-

time, including “administrative gain-time,”* and “provi-

sional release credits.”* When awarded, these credits re-

duced the actual time an inmate was required to serve

in prison, i.e., the time was “credited” against the prison

sentence pronounced by the sentencing judge. Inmates

maintained their eligibility for overcrowding-related credits

through good behavior.®

2“Emergency gain time” was only available if Florida prison

population reached a threshold percentage of capacity. See § 944.598,

Fla. Stat. (1985) (Lodg. Doc. 27). Because the Florida prison

population did not exceed the statutory trigger percentage, the

Department of Corrections did not award emergency gain time

to any inmate between 1983 and 1986.

* See § 944.276, Fla. Stat. (1987) (Lodg. Doc. 17).

* See § 944.277, Fla. Stat. (Supp. 1988) (Lodg. Doc. 19). From

the perspective of the recipient, there was no relevant distinction

among the different types of overcrowding credits. All such credits

were awarded conditional on the inmate’s good behavior and an

executive finding that the prison system was approaching its lawful

capacity. See § 944.598, Fla. Stat. (Supp. 1986) (Lodg. Doc. 29) ;

§ 944.276, Fla. Stat. (1987); § 944.277, Fla. Stat. (Supp. 1988).

As part of a major revision of the Florida sentencing system in

1998, the Florida legislature repealed § 944.277. See 1998 Fla.

Laws ch. 93-406. Florida thus no longer uses provisional credits

as an early release mechanism. See § 944.278, Fla. Stat. (1993),

(Lodg. Doc. 16).

® Inmates could obtain emergency credits if they were receiv-

ing “gain-time,” which in turn depended on good behavior. See

§ 944.598(2), Fla. Stat. (1985) (Lodg. Doc. 27). Inmates were

eligible for administrative gain-time and provisional credits as

4

Beginning in 1987, the Florida Legislature created a

series of new offense-based exclusions from eligibility for

early release credits." A 1989 amendment to § 944.277

added an exclusion for inmates convicted of murder of-

fenses, including petitioner's crime of attempted murder.”

The 1989 amendment, and subsequent amendments con-

taining the same exclusion enacted in 1990 and 1991,

were applied prospectively only. The 1992 amendment

at issue in this case, effective July 6, 1992, contained the

same offense-based exclusion. See § 944.277(1)(i), Fla.

Stat. (Supp. 1992) (App. A).” The Florida Secretary of

Corrections initially interpreted the 1992 amendment, like

the earlier amendments to § 944.277(1), to apply only

prospectively.

2. As the result of crowded prison conditions and

Petitioner’s good behavior, the Secretary of Corrections,

long as they were earning “incentive gain-time.” See § 944.276(1),

Fla. Stat. (1987); § 944.277(1), Fla. Stat. (Supp. 1988). Awards

of incentive gain-time required that the inmate take positive action

beyond mere observance of prison rules, such as holding a prison

job. See § 944.275(4) (b), Fla. Stat. (1985) (Lodg. Doc. 13).

* The 1987 law providing for administrative gain-time, § 944.276,

excluded from eligibility inmates serving mandatory minimums

for certain felonies and convicted sex offenders who had not suc-

cessfully completed a treatment program. The 1988 law creating

provisional release credits, § 944.277, excluded habitual offenders,

inmates serving mandatory minimums for drug and capital offenses,

and inmates convicted of certain felonies in connection with an

attempted or completed sexual assault.

* See § 944.277(1) (i), Fla. Stat. (1989) (Lodg. Doe. 21).

* See 1992 Op. Att’y Gen. Fla. 92-96 at 288 (December 29, 1992)

(App. B).

* Petitioner’s initial brief was somewhat imprecise in describing

the chronology in 1992. See Pet. for Cert. at 2. The 1992 amend-

ment to § 944.277(1) (i) was effective on July 6, 1992. Petitioner

was released from prison on October 1, 1992. J.A. 50. The opinions

of the Florida Attorney General prescribing the retroactive applica-

tion of the 1992 amendment to § 944.277(1) were issued on Decem-

ber 29 & 31, 1992. See App. B & D.

5

acting pursuant to § 944.277, granted petitioner 1,860

days of “provisional release credits” toward early release

between 1988 and 1991. J.A. 50.” Based on those

credits, and on petitioner’s full satisfaction of all of the

Statutory requirements for award and maintenance of

early release credits, the State of Florida released peti-

tioner from prison pursuant to § 921.001(10)(d) (Supp.

1992) on his mandatory release date of October 1, 1992.

J.A. 50."

On December 29, 1992, the Florida Attorney General,

responding to the concerns of Florida legislators and state

Officials about the imminent release of a notorious sex

offender and murderer, issued an opinion Stating that the

offense-based exclusions contained in § 944.277(1), as

amended in 1992 (“the 1992 Act”), applied retroactively

to exclude from eligibility for provisional credits all in-

mates who committed such offenses prior to the law’s

enactment.” Two days later, in response to an inquiry

1© The Joint Appendix contains a typographical error, incorrectly

indicating that petitioner received 1360 days of provisional release

credits that were revoked pursuant to the 1992 Act. J.A. 62 (Glover

Affidavit). The actual number of provisional release credit days

awarded to petitioner was 1860, as indicated two pages earlier in

the same affidavit. /d. at 50.

" Florida law required the Secretary of Corrections to establish

a non-discretionary “provisional release date,” and to release peti-

tioner on that date. See §§ 944.277(3), (5), 921.001(10) (d), Fla.

Stat. (Supp. 1988) (Lodg. Doc. 12, 19-20). Florida further re-

quired that prisoners convicted on or after J uly 1, 1988 be released

to probation or supervised release. See § 944.277 (5), Fla. Stat.

(Supp. 1992). Prisoners who committed offenses before J uly 1,

1988—including petitioner—were released unconditionally. See id.:

Judgment and Sentence, State of Florida v. Kenneth R. Lynce,

Orange Cty. CR 85-6173 (April 14, 1986) (Lodg. Doc. 146-50)

(imposing no supervised or conditional release terms).

12 See 1992 Op. Att’y Gen. Fla. 92-96 (December 29, 1992) (App.

B). The opinion refers to sex offender Donald G. McDougall sev-

eral times. See id. The rationale for the retroactive application

of amended § 944.277 was that prior amendments in 1990 and 1991

had expressly provided for prospective application, while the 1992

amendment was silent on this matter. Jd. at 287-89.

6

from the Department of Corrections, the Attorney General

directed the Department to cancel all credits previously

earned by inmates now deemed covered by the 1992 ex-

clusions, reasoning that the award of provisional release

credits was “strictly an administrative mechanism to re-

lieve prison overcrowding.” ™

Pursuant to this executive agency re-interpretation of

the 1992 Act, the Department of Corrections revoked the

1,860 days of provisional credit previously awarded to

petitioner. J.A. 51. Because petitioner had been released

from prison several months earlier, the Department sought

a warrant for his rearrest. J.A. 51. On May 17, 1993,

the sentencing court issued an Order for Execution of

Sentence Imposed and Retaking of Prisoner. J.A. 5].

Petitioner was arrested on June 8, 1993 and returned to

prison. J.A. 51. The retroactive cancellation of peti-

tioner’s credits pushed his release date back to May 19,

1998. J.A. 52.

3. On August 18, 1994, petitioner filed a petition

for a writ of habeas corpus alleging, inter alia, that the

retroactive application to him of amended § 944.277(1)

violated the prohibition against ex post facto laws set

forth in Article I, Section 10, clause 1 of the United

States Constitution. J.A. 2-29. Petitioner argued that the

revocation of all provisional release credits previously

awarded to him and his resultant re-incarceration was an

unconstitutional increase in punishment for a crime after

its commission. J.A. 22-25.

On March 14, 1995, a United States Magistrate Judge

for the Middle District of Florida, relying on the Eleventh

Circuit’s opinion in Hock v. Singletary, 41 F.3d 1470

(11th Cir. 1995), cert. denied, 116 S. Ct. 715 (1996),

recommended that the petition be denied and dismissed

with prejudice on the ground that the 1992 Act was

adopted merely as a means to relieve prison overcrowding

18 See Letter to Secretary Singletary (Dec. 31, 1992) (App. D).

7

and was, therefore, not subject to the prohibitions of the

Ex Post Facto Clause. J.A. 53-60. The United States

District Court for the Middle District of Florida adopted

the Report and Recommendation and dismissed the peti-

tion on May 10, 1995. J.A. 64." Petitioner subsequently

filed with the district court an Application for a Certificate

of Probable Cause, which the court denied on June 16,

1995. J.A. 65.

4. The United States Court of Appeals for the Elev-

enth Circuit denied without comment petitioner's renewed

Application for a Certificate of Probable Cause by Order

dated October 16, 1995. J.A. 66.

On Jan. 10, 1996, petitioner filed with this Court a

petition for writ of certiorari. On May 13, 1996, the

Court granted certiorari. J.A. 67.

SUMMARY OF ARGUMENT

This case involves an inmate who served the full time

prescribed by Florida law for his crime, was released from

custody unconditionally, and then, based on a belated

interpretation of a new state statute, was reincarcerated

by the State of Florida for an additional five years for

the same offense. Respondents used the 1992 Act to

strip petitioner of early release credits previously awarded

14 Respondents initially argued in district court for the dismissal

of Mr. Lynce’s habeas corpus petition on the ground that he had

failed to exhaust state law remedies. Respondents conceded, how-

ever, that with respect to the central question of the retroactive can-

cellation of early release credits, exhaustion would be futile. See

Respondent’s Answer to Petition for Writ of Habeas Corpus (J.A.

86). Indeed, the Florida Supreme Court had recently held constitu-

tional the retroactive application of § 944.277 (1992) to withdraw

provisional release credits already awarded, see Griffin v. Singletary,

638 So. 2d 500, 501-02 (Fla. 1994), see also Dugger v. Rodrick, 584

So. 2d 2 (Fla. 1991), cert. denied sub nom. Rodrick v. Singletary,

502 U.S. 1087 (1992), and there was no reason to believe that the

court would change its position. See Petition for Writ of Habeas

Corpus (J.A. 12-14); see also Schall v. Martin, 467 U.S. 253, 261

(1984).

and reimprison him, thereby retroactively increasing the

punishment for his crime. The 1992 Act, as applied to

petitioner, is an unconstitutional ex post facto law, be-

cause it directly increased the punishment for his crime,

several years after its commission.

A long line of cases from this Court has established

that laws that retroactively increase punishment are pro-

hibited by the Ex Post Facto Clause. This foundational

principle is rooted in the Framers’ concern—based on

their own experience—that in the absence of an absolute

and unequivocal prohibition, state and federal govern-

ments would be free to modify crimes and their punish-

ments without fair warning or notice to potential offend-

ers, and to enact arbitrary or vindictive retroactive legisla-

tion targeting disfavored groups. Respondents’ application

of the 1992 Act ignored that prohibition, in an exercise

of precisely the governmental excesses the Ex Post Facto

Clause is designed to prevent.

The central feature of punishment for a felony is the

actual length of incarceration. Under Florida law, a pris-

oner’s “real sentence,” i.e., the actual duration of his in-

carceration, is determined by the interaction of the

nominal sentence imposed by the sentencing judge pursu-

ant to sentencing guidelines and several statutorily pre-

scribed types of early release credits. By nullifying early

release credits previously awarded to petitioner, the 1992

Act directly increased his punishment, lengthening his

actual term of incarceration by more than five years.

Unlike changes to procedures this Court has upheld as

having only a conjectural effect on actual punishment,

the increased punishment meted out to petitioner was a

direct and certain result of the application of the 1992

Act. Petitioner completed his sentence and was released

unconditionally in October 1992, nearly three months

before the Florida Attorney General’s opinion. Petition-

er’s re-incarceration by the Florida Department of Correc-

tions in June of 1993 was based solely on his 1985 offense

9

of conviction.” Thus, the re-imprisonment of petitioner

for an additional five years for the same conduct ‘was the

direct and concrete result of the retroactive application

of the 1992 Act.

Exempting the retroactive cancellation of provisional

release credits from the proscription of the Ex Post Facto

Clause would flatly contravene established precedent from

this Court. The Court has consistently refused to allow

the retroactive application of laws changing sentencing

formulas, and mechanisms determinative of actual sen-

tence length, to the detriment of persons who committed

crimes prior .o the enactment of the new sentencing laws.

See, e.g., Miller v. Florida, 482 U.S. 423 (1987); Weaver

v. Graham, 450 U.S. 24 (1981); Lindsey v. Washington,

301 U.S. 397 (1937). The 1992 Act, as applied to

petitioner, retroactively changed the formula for calculat-

ing his term of incarceration. Indeed, in applying the

1992 Act, respondents went much further by actually

revoking previously awarded credits, which resulted in the

imposition of a longer term of incarceration not only after

the commission of the crime, but also after sentence had

been imposed and fully served.

This Court has held that whether a given statutory

change constitutes an ex post facto violation is a matter

of degree. It would be irrational to find that, while the

retroactive application of a new formula for calculating

an Offender’s initial sentencing range offends the Consti-

tution, a law which operates retroactively to increase a

sentence after it is imposed and served somehow falls

outside the protection of the Ex Post Facto Clause.

Moreover, given the mounting overcrowding crisis in

Florida’s prisons in 1986, it was rational for Mr. Lynce

%® As previously noted, supra note 1, shortly after his reincarcera-

tion in 1998, petitioner pleaded nolo contendere to an independent

new charge based on conduct after his October 1992 release, and

was sentenced to four years to be served concurrently with the

renewed sentence (for his 1985 crime) at issue in this case.

10

(and for similarly situated accused offenders) to factor

the availability of these credits into his decision to plead

nolo contendere to the charge of attempted murder. Thus,

the 1992 Act also violated petitioner’s interest in notice

and fair warning and his reasonable expectation at the

time of his plea and sentencing, based on the law in

effect in 1986, that there existed a strong likelihood that

early release credits based on prison overcrowding would

shorten his prison term.

The 1992 Act is not a procedural law. The sine qua

non of a purely procedural law for purposes of ex post

facto analysis is the lack of effect on the quantum of pun-

ishment attached to the crime. The 1992 Act changed

the quantum of punishment attached to a particular crime

by excluding a selected group of offenders from eligibility

for future credits and by canceling the credits they had

already earned under the prior law. Whether the former

law was enacted as a matter of administrative convenience

is irrelevant—the 1992 Act is a substantive penal statute,

fully subject to the requirements and prohibitions of the

Ex Post Facto Clause.

ARGUMENT

I. THE 1992 AMENDMENT TO § 944.277 (the “1992

Act”), WHICH RETROACTIVELY WITHDREW

PROVISIONAL RELEASE CREDITS FROM FLOR-

IDA PRISONERS AFTER THOSE CREDITS WERE

AWARDED, VIOLATED THE EX POST FACTO

CLAUSE BY INCREASING PETITIONER’S PUN-

ISHMENT FOR CRIMES AFTER THEIR COM-

MISSION.

The Ex Post Facto Clause of the United States Consti-

tution prohibits laws that retroactively increase the pun-

ishment attached to a crime. California Dep't of Correc-

tions V. Morales, 115 S. Ct. 1597, 1601 (1995): Collins

v. Youngblood, 497 U.S. 37, 42 (1990); Beazell v. Ohio,

269 U.S. 167, 169 (1925); Calder v. Bull, 3 U.S. (3

Dall.) 386, 390-92 (1798). It has been established

reason for increasing the punishment, or the label it

affixes to the law effecting that change. See, e.g., Young-

blood, 497 U.S. at 43; Weaver, 450 U.S. at 31.

However, the Court has held that not every law that

retroactively “disadvantages” an offender violates the

not violate the Ex Post Facto Clause if it is merely “pro-

cedural.” See Dobbert v. Florida, 432 U.S. 282, 293-94

(1977). To violate the constitutional prohibition, a law

must “produce a sufficient risk of increasing the measure

of punishment attached to the covered crimes.” Morales,

115 S. Ct. at 1603. Although this Court has not enunci-

** Justice Chase, writing for the Court in Calder, eloquently

described the Framers’ historical and contemporary concerns, and

the policies underlying the Ex Post Facto Clause, concluding that

the Clause was one of the great principles of our social compact.

) at 388-390. Calder identified four categories

Ex Post Facto Clause, two of which are

12

ated a precise formula for determining how large this risk

must be, Morales made clear that laws creating only a

“speculative, attenuated risk” of increasing punishment do

not violate the Ex Post Facto Clause. /d. at 1603.

A. As Applied to Petitioner, the 1992 Act Violated the

Ex Post Facto Clause by Increasing Retroactively

the Punishment for His Crime After Its Commission

and Returning Him to Prison for an Additional

Five Years.

The central question in an ex post facto analysis of

changes to laws affecting criminal sentences is not whether

a prisoner’s original sentence technically has been in-

creased by a retroactive law, but whether an important

statutory determinant of the actual length of his sentence

has been altered to his detriment. See Weaver, 450 U.S.

at 32; Lindsey v. Washington, 301 U.S. 397, 401-02

(1937). Accordingly, this Court has held that the deter-

minants of early release are properly considered part of

the punishment of a crime. See Weaver, 450 U.S. at 32:

Warden Vv. Marrero, 417 U.S. 653, 662-63 (1974)."

The three most closely analogous ex post facto deci-

sions of this Court compel the conclusion that the appli-

cation of the 1992 Act to petitioner retroactively increased

his punishment, in violation of the Ex Post Facto Clause

and the interests it protects. In Lindsey v. Washington,

301 U.S. 397 (1937), the Court considered a statute that

*T From a practical standpoint, laws directly influencing a prison-

er’s date of release are an integral part of the punishment for

crimes, because they are a significant factor in both a defendant's

plea decision and in a judge’s calculation of the sentence to be

imposed. See Weaver 450 U.S. at 32; Marrero, 417 U.S. at 658.

Marrero also noted that “a repealer of parole eligibility previously

available to imprisoned offenders would clearly present the serious

question under the ez post facto clause . . . of whether it imposed a

‘greater or more severe punishment than was prescribed by law at

the time of the . . . offense.” /d. at 663 (emphasis in origina!)

(quoting Rooney v. North Dakota, 196 U.S. 319, 325 (1905) ).

ral

ae

F

e228

fis

A

u

were committed. See id. at 400-01. The

the argument that the new law was consti-

because it was possible that the sentencing court

have imposed the statutory maximum under the old

, which would result in the same prison sentence

ired by the new statute. Jd. The Court emphasized

t the constitutional transgression of the statute was

the detrimental change in the possible penalty for a crime

already consummated. See id. at 401.

Reaffirming the basic principle of Lindsey, the Court

held in Weaver and in Miller v. Florida, 482 U.S. 423

HeEei

:

4

Clause. The offending statute in Weaver retroactively re-

duced the number of days, i.e., “early release credits,”

prison rules. See Weaver, 450 U.S. at 26-28. As applied,

the statute at issue in Weaver had the prohibited effect

of retroactively increasing the minimum sentence that the

petitioner could have received under the law in place at

the time of his crime. See id. at 33-35. Similarly, in

Miller, the statute in question altered the formula for

calculating the petitioner's presumptive sentencing range

by increasing the number of sentencing “points” assigned

to his offense after he committed the crime. See Miller,

482 U.S. at 425-27. The Court struck down the retro-

active application of this law as an unconstitutional ex

post facto increase in petitioner’s punishment. See id.

at 435-36.

14

In Morales, 115 S. Ct. at 1601, the Court made clear

the continued vitality of the Lindsey-Weaver-Miller

“trilogy” when it distinguished the procedural change at

issue in the case at bar from the ex post facto violations

found in the trilogy." The Court reaffirmed the core

principle of the trilogy, citing the cases for the propo-

sition “that a legislature may not stiffen the ‘standard of

punishment’ applicable to crimes that have already been

committed” by “changing the sentencing range applicable

to covered crimes. . . .” Morales, 115 S. Ct. at 1601,

1602. Legislative “adjustments to mechanisms surround-

ing the sentencing process”—like early release credits—

are evaluated under the same standard. /d. at 1603 n.4.

Based on the standards established in Lindsey, Miller

and Weaver, this is not even a close case. If the Florida

Legislature had merely declared that, from ihe effective

date of the 1992 Act forward, petitioner and similarly

situated prisoners would no longer be eligible to receive

provisional release credits, this case would be essentially

on all fours with Weaver. See Morales, 115 S. Ct. at

1601 (Ex Post Facto Clause prohibits retroactive statutes

having “the purpose and effect of enhancing the range of

available prison terms. . .”)."®

8 As described in greater detail, infra, Morales involved a state

statute that reduced the presumptive frequency of parole hearings

for persons convicted of homicide, but retained identical substan-

tive standards governing a prisoner’s eligibility for parole. Morales,

115 8. Ct. at 1602. The Court held that because the statutory

change was a mechanical change creating no significant risk of

increased punishment, it did not transgrese the boundaries set by

the Ex Post Facto Clause. /d. at 1608.

There can be no question that the 1992 Act is a retroactive

law. This Court recently stated that a law is retroactive if “the

new provision attaches new legal consequences to events completed

before its enactment.” Landgraf v. USI Film Prods., 114 8. Ct.

1483, 1499 (1994). This inquiry requires a court to determine

the nature of the legal change and the degree of connection be-

tween this change and relevant past events. Jd. At the time of

15

Because the 1992 Act, as applied, did not stop at can-

celing petitioner’s eligibility for the future award of cred-

its, the retroactive punishment inflicted on petitioner was

more egregious than those held unconstitutional in Lind-

sey, Weaver and Miller. Respondents applied the 1992

Act to withdraw 1,860 days of early release credits al-

ready awarded to him under a prior statute, resulting in

the retroactive “re-calculation” of his release date after

he had been released from prison. Thus, as a direct and

immediate result of the application of the 1992 Act, peti-

tioner was re-arrested and returned to prison to serve more

than five additional years. It is difficult to envision a

more clear example of a sta.ute that “[made] more bur-

densome the punishment for a crime, after its commis-

sion... .” Youngblood, 497 U.S. at 52.”

his conviction, petitioner was eligible for all types of early release

credits. The 1992 Act rendered him ineligible for provisional

credits and resulted in the cancellation of credits already held.

Thus, the 1992 Act changed the legal consequences of a crime

committed in 1985. Moreover, the immediate withdrawal of credits

previously earned demonstrates that there was a direct and sub-

stantial connection between the legal change and petitioner’s past

crime.

* The conclusion that the application of the 1992 Act to peti-

tioner violates the Ex Post Facto Clause is supported by Arnold v.

Cody, 951 F.2d 280 (10th Cir. 1991). There, the Tenth Circuit

invalidated a statute which denied inmates continued ability to

acquire early release credits available under prior law. Jd. The

statute at issue in Arnold provided for selective withdrawal of

eligibility for “overcrowding” early release credits. See id. at

281. Critical to the Arnold court’s holding was its finding that

credits earned for good behavior were indistinguishable from

credits acquired as the result of prison overcrowding. Jd. at 288.

Arnold lends support to the conclusion that laws changing eligibility

standards for prison overcrowding credits are indistinguishable

from the law reducing good behavior credits which this Court held

invalid in Weaver. Moreover, the fact that the 1992 Act was used

to strip petitioner of provisional credits previously awarded (rather

than simply deny him future eligibility) suggests that this law

lies even further toward the unconstitutional end of the spectrum

16

Whether the statutory change in the punishment for a

crime is accomplished by a change to the nominal sentence

imposed by the sentencing judge, as in Lindsey, or by

adjusting a related determinant of a prisoner’s “real”

punishment, as in Weaver, is of no legal relevance. See

Lindsey, 301 U.S. at 401; Weaver, 450 U.S. at 35-36.

The 1992 Act had the direct and undeniable effect of

increasing petitioner's punishment after his crime had

been consummated. Therefore, the Act violated the clear

command of the Constitution, as consistently enforced in

every Ex Post Facto Clause decision rendered by this

Court from Calder through Lindsey to Morales.

B. Morales’ Refinement of the Lindsey-Weaver-Miller

Rule Does Not Change the Result in This Case.

Although the Court’s recent decision in Morales re-

focused the ex post facto analysis in some respects, the

retroactive increase in punishment effected by the 1992

Act is just as clearly prohibited today as it was before

Morales. In Morales, the Court simply clarified that, in

order to show an ex post facto violation, an offender

must show the retroactive harm was more than some

ambiguous “disadvantage,” or the mere denial of an

uncertain “opportunity” to take advantage of early release

provisions. Morales, 115 S. Ct. at 1602 n.3. Instead, a

statutory change violates the ex post facto prohibition if

it “alters the definition of criminal conduct or increases

the penalty by which a crime is punishable.” /d. (citing

Youngblood, 497 U.S. at 41). Morales also made clear

that the application of the Ex Post Facto Clause is a

matter of degree and that small “mechanical” changes

producing only a slight or speculative risk of increasing

than the offending law in Arnold. See Morales, 115 S. Ct. at

1608 (whether given retroactive statute violates Ex Post Facto

Clause is matter of degree).

17

a prisoner’s term of confinement do not fall within the

constitutional prohibition. Jd. at 1602-03.”

The respondent in Morales was a twice-convicted mur-

derer. At the time respondent committed the second

murder, California statutes provided for annual parole

suitability hearings. /d. at 1600. After the second mur-

der, but before respondent was sentenced, California

changed its law to provide that, after a multiple murderer’s

initial parole suitability hearing, future hearings could

be deferred for up to three years if the parole board

found that it was unreasonable to expect that the prisoner

would be found suitable for parole in the intervening

years. Id. The substantive standards for determination

of eligibility for parole were identical to those in effect at

the time of the offense. /d. at 1602-03. The Court re-

jected the respondent’s challenge to the change in the

frequency of parole hearings, finding the slight risk that

such a change might increase his actual term of confine-

ment too speculative, attenuated and conjectural, and thus

insufficient to warrant invalidation under the Ex Post

Facto Clause. /d. at 1604-05.

As applied to petitioner, the 1992 Act unquestionably

“produce[d] a sufficient risk of increasing the measure of

punishment attached to the covered crimes.” /d. at 1603.

Far from the “speculative and attenuated” connection

presented in Morales, the link between the withdrawal of

provisional release credits from petitioner and the sub-

stantial lengthening of his prison term was clear, direct,

71 Examples of sentencing and parole law changes falling outside

the protections of the Ex Post Facto Clause cited in Morales in-

cluded changes to the membership of parole boards, changes to the

hours of prison law libraries, restrictions on a defendant’s time to

speak before a senten-'ng judge, and page limits on a defendant’s

objections to presentex. reports or petitions for pardon. Jd. at

1603. None of these :emotely approaches in severity the direct

lengthening of a sentence by five years after a full sentence had

been lawfully served.

and certain. Id. The “risk” of increased punishment for

petitioner’s crime resulting from the application of the

1992 Act was 100%. Cf. id. As the direct and certain

result of the retroactive application of the 1992 Act, the

State of Florida increased petitioner’s punishment over

that prescribed by the law in effect at the time of his

crime, reimprisoning him for an additional five years.

Moreover, unlike the statute at issue in Morales, the

1992 Act contained absolutely no features to reduce the

risk that the statute would increase petitioner’s punish-

ment. The statute challenged in Morales afforded pro-

tections that minimized the risk that a prisoner would

serve a longer time in prison than he would have served

under the prior law. See id. at 1603-05. First, the statute

applied to a class of prisoners with only a remote possi-

bility of release on parole. See id. at 1603. Second, the

parole board was required to make a specific finding for

each prisoner at his mandatory initial hearing that the

likelihood of release on parole was effectively nil. See id.

at 1604. Finally, the parole board retained discretion to

tailor the frequency of subsequent hearings to the circum-

stances of the particular prisoner. See id. The existence

of these protections meant that “the practical effect of a

hearing postponement [was] not significant.” Jd. at 1605.

By contrast, the 1992 Act was an unadorned offense-

based exclusion from eligibility for early release credits.

See § 944.277, Fla. Stat. (Supp. 1992) (App. A). The

Florida Attorney General discovered authority to cancel

petitioner’s early release credits not in the language of the

1992 Act, but rather in implied legislative intent.” Any

protective features would necessarily emanate from the

2 The Attorney General reasoned that since past amendments

had expressly provided for prospective application of § 944.277,

the lack of any such directive in the 1992 Act suggested a legisla-

tive intent for it to apply retrospectively. See 1992 Op. Att’y Gen.

Fla. 92-96 at 287-89 (Dec. 29, 1992) (App. B).

19

same source. The Attorney General apparently did not

discern any intent by the Florida Legislature to limit in

any way the power of the Department of Corrections to

withdraw previously awarded credits. See Letter to Sec-

retary Singletary (Dec. 31, 1992) (App. D). The ab-

sence of any protective or mitigating features in the 1992

Act similar to those in the law upheld in Morales re-

inforces the conclusion that the increase in punishment

imposed by Florida is proscribed by the Ex Post Facto

Clause.

C. Provisional Release Credits and Other Early Release

Credits Are an Integral Part of the Punishment

Attached to Petitioner’s Crime and a Critical Deter-

minant of the Length of His Incarceration.

This Court has established that statutory “adjustments”

to a prison sentence are part and parcel of the punishment

imposed. See Weaver, 450 U.S. at 32; Warden v. Marrero,

417 U.S. 653, 658 (1974); see also Morales, 115 S. Ct.

at 1603 n.4 (adjustments to “mechanisms surrounding the

sentencing process” are subject to same ex post facto anal-

ysis as other statutory changes). Penal laws that add or

subtract time from an inmate’s period of incarceration

need not be “in some technical sense part of the sentence”

to be an essential determinant of the actual punishment

for crimes. Weaver, 450 U.S. at 32 (citing Lindsey, 301

U.S. at 402-03); cf. Marrero, 417 U.S. at 662-63 (parole

is an element of punishment).

Early release credits were an integral component of

Florida’s structured sentencing system as it existed during

the period relevant to this case.™ Beginning in 1983,

*8 Implicit in the Court’s opinion in Morales is the principle that

a statute would violate the Ex Post Facto Clause if it operated

directly to deny a prisoner parole under circumstances in which

he would clearly have been granted parole under the statute in

effect at the time he committed the crime. See generally Morales,

115 S. Ct. 1597. Early release credit, or “gain-time” is as integral

to the punishment for a crime in Florida as parole had been under

20

Florida imposed prison sentences under a “real offense”

sentencing guidelines system. Under this system, the stat-

utes defining the criminal offense provide only the extreme

outer limits of the sentence that lawfully could be im-

posed.* However, under ordinary circumstances, the sen-

tence actually pronounced by the judge is determined by

application of a sentencing matrix established by the

Florida Sentencing Guidelines. See generally §§ 921.001-

921.005, F'a. Stat. (1985) (Lodg. Doc. 9-10). At the

time petitioner committed his crime, the “real time” served

by a person convicted of a crime in Florida, i.e., the time

he actually served in prison, was determined by the inter-

action of the guideline sentence pronounced by the sen-

tencing judge and several types of “gain-time” or early

the traditional sentencing system in place in Florida prior to 1983.

The legislative history of the Florida Correctional Reform Act of

1988, 1983 Fla. Laws ch. 83-131, demonstrates that “gain-time” in

all of its forms was intended to function as the substitute for

parole within the framework of structured sentencing. Under the

new early release regime, “[p]jersons convicted on or after the

effective date of the act [would] no longer be eligible for parole

and [would] have their release governed by expiration, gain-time,

or clemency.” See Senate Staff Analysis and Economic Impact

Statement for SB 644 at p. 2 (May 24, 1983) (emphasis added)

(Lodg. Doc. 39). The legislative history of the 1987 law creating

administrative gain-time also demonstrates the Legislature’s intent

that gain-time would supplant parole as the primary mechanism

for shortening an inmate’s term of confinement: “With the crea-

tion of the Sentencing Guidelines by the 1983 Legislature and the

elimination of parole for inmates sentenced after Oct. 1, 1983,

gain-time accumulation is virtually the exclusive method of re-

lease from confinement.” See Senate Staff Analysis and Economic

Impact Statement for SB 3A at p. 1 (Feb. 4, 1987) (Lodg. Doc.

46). When this new provision for overcrowding-related early re-

lease credits was enacted, it was clear that “nondiscretionary re-

lease device[s]” were as instrumental as parole had been in

“determin[ing] the actual length of sentence to be served.” See

id.

24 The statute prescribing the outer limit of petitioner’s sentence

was § 775.082, Fla. Stat. (1985) (Lodg. Doc. 2).

21

release credits.” The guideline statute in effect at the

time of petitioner’s offense and conviction provided, in

part, that an offender “shall be released from incarcera-

tion . . . [uJpon expiration of his sentence as reduced by

accumulated gain-time.” §921.001(8)(b), Fila. Stat.

(1985) (emphasis added) (Lodg. Doc. 10).

State law plainly provides that early release gain-time

was an integral part of the punishment imposed for peti-

tioner’s offense. The sentencing guidelines promulgated

by the Florida Supreme Court provides as follows:

[t]he sentence imposed by the sentencing judge

should reflect the length of time to be served, short-

ened only by the application of gain-time.

Fla. R. Crim. P. 3.701(b)(5) (1985) (reported in The

Florida Bar: Amendment to Rules of Criminal Procedure

(3.701, 3.988—Sentencing Guidelines), 468 So. 2d 220,

222 (Fla. 1985)) (Lodg. Doc. 32).

* Early release credits in the form of “emergency gain-time”

were created at the same time as Florida’s sentencing guidelines

and accompanied the abolition of parole and other major sentencing

reforms. See The Correctional Reform Act of 1983, 1983 Fla. Laws

ch. 83-131 (codified in part at § 944.598, Fla. Stat. (1983)) (Lodg.

Doc. 26) ; see also § 921.001(3), (7), Fla. Stat. (1988) (Lodg. Doc.

7-8). Under pre-1983 indeterminate sentencing, parole and gain-

time had been used for early release to target limited penal re-

sources. See, e.g., Senate Staff Analysis and Economic Impact

Statement for SB 210 at p. 1 (rev. Mar. 7, 1989) (Lodg. Doc. 48-

49); Corrections Overcrowding Task Force, Final Report and

Recommendations 65 (1983) (“COTF Report”) (Lodg. Doc. 109).

The new guidelines and the abolition of parole gave rise to another

early release mechanism to replace parole. See, e.g., Samuel Jacob-

son, Sentencing Guidelines, 57 Fla. Bar J. 234, 236 (1983); Jim

Smith, Fla. Att’y Gen., A Major Revision of the System is Needed,

at 208-09 (in Jacobson, Sentencing Guidelines (1983)); COTF Re-

port at 68-70. Gain-time, including emergency gain-time and its

successors, replaced parole as the primary limitation on the dura-

tion of the new guidelines sentences. See, e.g., Fla. R. Crim. P.

3.701(b) (5) (1988, 1985) (Lodg. Doc. 32).

22

In 1988, when the Legislature created provisional re-

lease credits, it also amended the sentencing statute to

provide that a prisoner “shall be released from incarcera-

tion” on the occurrence of one of four events, includ-

ing “attain{ment] [of] the provisional release date.”

§ 921.001(10), Fla. Stat. (Supp. 1988). A prisoner's

“provisional release date” is the date determined by the

length of the sentence imposed by the sentencing judge,

as reduced by early release credits, including “gain-time”

and provisional release credits. See § 944.277(3), Fla.

Stat. (Supp. 1992) (App. A) (provisional release date) ;

see also § 944.275(3), Fla. Siat. (1987) (Lodg. Doc.

17) (tentative release date).

Respondents apparently concede that early release

credits awarded for good behavior and diligent labor are

an integral part of the punishment for crimes under

Florida law and, therefore, cannot be withdrawn without

violating the Ex Post Facto Clause. See Dugger Vv.

Rodrick, 584 So. 2d 2 (Fla. 1991) (cited with approval

in 1992 Op. Att'y Gen. Fla. 92-96 (Dec. 29, 1992) (App.

B)), cert. denied sub nom. Rodrick v. Singletary, 502

U.S. 1037 (1992). Indeed, the Florida Attorney General

recently opined that a rule denying good behavior and

incentive credits may be applied only prospectively and

that credits previously awarded may not be withdrawn.

See Op. Att’y Gen. Fla. 96-22 (March 20, 1996) (Lodg.

Doc. 61-64). However, Respondents contend that early

release credits awarded based on the same criteria, but

available only during periods of prison overcrowding, are

so different in kind that they are exempt from the require-

ments of the Ex Post Facto Clause. Opp. to Pet. for

Cert. 5-9.

Neither the law nor the practical operation of the Flor-

ida penal system supports such a distinction between

provisional credits and good behavior credits. It is un-

reasonable and logically inconsistent to acknowledge that

good behavior credits reduce punishment, while simultane-

= Ss

23

ously maintaining that provisional credits are merely “ad-

ministrative” and do not affect significantly the punish-

ment attached to a crime.” Under Florida law, “gain-

time” and “incentive gain-time” credits are awarded for

various types of good behavior. See § 944.275, Fla. Stat.

(1987) (Lodg. Doc. 17). Provisional release credits

were additional credits awarded for good behavior when

prisons were overcrowded. § 944.277, Fla. Stat. (Supp.

1988, 1989) (Lodg. Doc. 19-20, 21-22). Thus, provi-

sional credits and good behavior credits are identical ex-

cept that the former only became available if Florida

prisois approached their lawful capacity. Effectively,

prior to the 1992 Act Respondents could award a certain

quantity of “good behavior” early release credits and then,

in the event prison population reached a certain level,

they could award additional, indistinguishable credits to

ee eee as Se Oe Ge Cea

credits.

Respondents can offer no principled basis to distinguish

between provisional release credits and other types of

early release credits for purposes of ex post facto analysis.

*° The judge who sentenced petitioner apparently held the com-

mon sense view that early release credits were part of the petition-

er’s sentence, and that the different types of credits are indistin-

guishable from the standpoint of punishment. In his sentencing

order, Judge Walter Komanski recommended that, “[i]n imposing

the above sentence, .. .” the Department of Corrections should make

available “credit Good/Gain-time.” Lodg. Doc. 150. This brief

entry on the “SENTENCE” form suggests that, in the sentencing

judge’s mind, both good behavior credits and al! other varieties of

gain-time played essentially the same role in the contemporary

Florida penal system.

** Provisional release credits could be awarded when prisons

reached 97.5% of their lawful capacity. § 944.277, Fla. Stat. (Supp.

1988) (Lodg. Doc. 19). When the prison population reached that

trigger level, inmates who satisfied the requirements for “incentive

gain-time” were eligible for an award of provisional release credits,

subject to offense-based exclusions. There were no other precondi-

tions for the award of provisional release credits.

24

Accordingly, the retroactive withdrawal of provisional re-

lease credits violates the Ex Post Facto Clause.

D. The Retroactive Offense-Based Exclusions Created

by the 1992 Act Undermine the Fundamental! Inter-

ests the Ex Post Facto Clause Is Designed to

Protect.

At least three important public policies underlie the

Ex Post Facto Clause: (1) to restrain government from

enacting arbitrary and vindictive legislation, see Miller v.

Florida, 482 U.S. 423, 429 (1987); Weaver, 450 US. at

29: Malloy v. South Carolina, 237 U.S. 180, 183 (1915);

(2) to give the public fair warning of and permit reliance

on the criminal law, see Miller, 482 U.S. at 430; Weaver,

450 U.S. at 28; and (3) to maintain the separation of

powers, see Weaver, 450 U.S. at 29 n.10. Respondents’

application of the 1992 Act to petitioner flouts each of

Most significantly, the retroactive application of the

1992 Act to re-imprison petitioner exemplifies arbitrary

and vindictive government treatment of a selected group

of citizens in service of political expedience. It is clear

from the Florida Attorney General’s opinion that his novel

interpretation of the 1992 Act was prompted by concerns

expressed by certain elected officials about the impending

release of Donald McDougall, an infamous murderer and

child abuser who had accumulated provisional release

credits pursuant to statute.“ Without any clear textual

support, the Florida Attorney General adopted an inter-

pretation of the 1992 Act that not only precluded future

acquisition of provisional credits by those convicted of

28 See 1992 Op. Att’y Gen. Fla. 92-96 at 283 (December 29, 1992)

(App. B) (“[{T]here is great concern in Central Florida regarding

the impending release of Donald Glenn McDougall who was con-

victed of second degree murder and aggravated child abuse.”) ;

see also Letter to Attorney General Butterworth (Dec. 30, 1992)

(App. C).

* See Letter to Secretary Singletary (Dec. 31, 1992) (App. D

. $1, . D).

This Court recently reaffirmed the principle that, absent clear con-

Clause demonstrates the Framers’ concern that the “{Legislature’s

responsivity to political pressures pose(d] a risk that it [would +e

tempted to use retroactive legislation as a means of retribution

against unpopular groups or individuals.” Landgraf, 114 S. Ct.

at 1497. The Florida Attorney General failed to apply the pre-

sumption against retroactivity to the 1992 Act when he implied

a legislative intent to withdraw early release credits previously

granted to selected classes of inmates who committed crimes prior

to the 1992 enactment. See 1992 Op. Att’y Gen. Fla. 92-96 (Dec.

29, 1992) (App. B) ; Letter to Secretary Singletary (Dec. 31, 1992)

(App. C). The Ex Post Facto Clause is intended to prevent this

unfair method of governance. Indeed, without constitutional re-

pera ne pn rg legislation, the “Legislature’s unmatched

wou w it to sweep away settled expectat -

|! we individualized consideration.” ~eermne ae

‘ a °

" Ses Wilda L. White, “New State Policy Shatters Freed Con-

vict’s New Life,” Miami Herald 1A (Aug. 3, 1993) (Lodg. Doe.

152) (89 released prisoners re-imprisoned after revocation

visional credits). ~* ge

26

tives. There was an undeniable, strong temptation under

the circumstances for the government to fail to meet the

high standard of restraint and respect for the rights of

unpopular minorities required by the Ex Post Facto

Clause. Viewed in this light, the response of the Florida

legislative and executive branches to the passions and

concerns of their constituents was understandable. Of

course, whether a government action was an understand-

able response to constituent pressure is not the constitu-

tional test. Because that response retroactively imposed

greater punishment on a selected group of citizens, it vio-

lates the Ex Post Facto Clause.

The application of the 1992 Act also violated basic

separation of powers principles by granting to the Legisla-

ture the power to determine the retroactive effect of penal

laws, thereby usurping the role of the judiciary and the

executive. See Weaver, 450 US. at 29 n.10. Finally,

as demonstrated in the following section, the application

of the 1992 Act frustrated petitioner's reasonabie expecta-

tions and reliance on the law in effect at the time of his

conduct and at the time of his plea and sentencing, by

changing the law retroactively and without fair warning.

Cf. id. at 28-29.

E. At the Time of His Plea and Sentencing, Petitioner

Reasonably Should Have Expected That He Would

Benefit from the Award of Provisional Release

Credits.

Several decisions of this Court note that the Ex Post

Facto Clause also protects a prisoner’s reliance in plea

bargaining on his reasonable expectations regarding pun-

ishment and his right to fair notice and warning regarding

changes in the law governing punishment. See Weaver,

450 U.S. at 32; cf. Morales, 115 S. Ct. at 1604. In deny-

ing petitioner’s habeas request, the district court relied

primarily on the opinion of the Eleventh Circuit in Hock

v. Singletary, 41 F.3d 1470 (11th Cir. 1995), cert.

27

denied, 116 S. Ct. 715 (1996)." Hock held that the

retroactive denial of “control release”™ credits to previ-

ously eligible inmates did not violate the Ex Post Facto

Clause, in part because the expectation of early release

due to prison overcrowding was too conjectural. 41 F.3d

at 1472-73. The court reasoned that, unlike “gain-time”

early release credits for good behavior, see Weaver, 450

U.S. at 32, “control release” credits were contingent on

future overcrowding and, therefore, a prisoner could not

reasonably rely on the potential award of such credits in

ae bargaining decisions. See Hock, 41 F.3d at

*! See Order of the United States District Court Dismissing

Petition (J.A. 64); Report and Recommendations of United States

Magistrate Judge (J.A. 58-59).

® The “control release” statute, § 947.146(2), Fla. Stat., was en-

acted in 1989 and provided for another category of early release

credits to maintain the prison population at or below 99 percent

of lawful capacity. See Hock, 41 F.3d at 1472-73.

* This analysis flatly contradicts that court's r decision in

Raske v. Martinez, 876 F.2d 1496 (11th Cir.), a denied, 498

U.S. 993 (1989), where it held that a law resulting in the retro-

active denial of “incentive gain-time” violated the Ex Post Facto

Clause. “Incentive gain-time” is a type of early release credit

awarded for exceptionally diligent work and good deeds. See, ¢.g.,

§ 944.275 (4) (b)-(c), Fla. Stat. (1998) (Lodg. Doc. 15). This

Court has previously recognized that the award of incentive gain-

time “is purely discretionary, contingent on both the wishes of

the correctional authorities and special behavior by the inmate,

such as saving a life or diligent performance in an academic

program.” Weaver, 450 U.S. at 35. The Raske court noted that

“the [Florida Corrections] department decides in its sole discre-

tion whether the prisoner has behaved well enough or worked dili-

gently enough to earn gain-time” and that “the opportunity to earn

incentive gain-time is dependent on the grace of the legisiature

and the availability of jobs...” 876 F.2d at 1499-1500 (emphasis

added). Despite the fact that an inmate’s acquisition of incentive

gain-time is contingent on legislative and executive decisions and

other circumstances outside of the inmate’s ability to contro! or

even influence, the Eleventh Circuit held that the retroactive denial

of those early release credits violated the Ex Post Facto Clause. /d.

In so holding, the court found irrelevant to the ex post facto

28

If the prospect of possible acquisition of early release

credits for good behavior is not too speculative to under-

gird reasonable expectations of early release, neither is

the award of provisional credits due to prison over-

crowding. Cf. Weaver, 450 U.S. at 24 (invalidating

Florida law that retroactively reduced amount of “gain-

time” early release credits a prisoner could earn). More-

over, while the award of administrative and provisional

release credits was indeed contingent on prison over-

crowding, thé burgeoning Florida prison population at

the time of petitioner’s plea and sentencing made the

award of these credits a near certainty. To the extent

that it was rational for petitioner and his lawyer to con-

sider the possibility of early release for good behavior,

see id. at 32, it was equally rational for them to factor

into their calculations the probability of acquiring pro-

visional credits.” Thus, the retroactive application of the

inquiry the question of the likelihood that an inmate would obtain

early release due to the award of incentive gain-time. /d. at 1500.

% Since 1980, the Florida Department of Corrections had been

under court order to reduce the Florida prison population. See

Costello v. Wainwright, 489 F. Supp. 1100 (M.D. Fla. 1980). Less

than a month before petitioner pleaded nolo contendere and was

sentenced, the number of inmates in Florida’s state prisons exceeded

98 percent of capacity, the statutory trigger for authorization of

provisional release credits. See Mark Dykstra, Apart from the

Crowd: Florida’s New Prison Release Program, 14 Fla. St. U. L.

Rev. 779 (1986). Writing in 1986, Dykstra stated thet “[the)

prison population problem in Florida is an issue that wil' not go

away.” Id. at 809.

%5 Petitioner’s choices over the six months between late 1985

and early 1986, encompassing his crime, plea, and sentencing for

attempted murder, were made against a backdrop of penal law and

a corrections system that relied heavily on statutorily-prescribed

early release credits to reduce prisoners’ actual time of incarcera-

tion. In combination with statutory provisions defining the applica-

ble sentence for the crime, petitioner could reasonably vonsider the

availability of early release credits as an important element of his

assessment of the possible punishment and in his decision to plead

29

1992 Act closed a previously available avenue of early

release, and defeated Mr. Lynce’s reasonable expectations,

without the constitutionally required fair warning. /d. at

28-31.

Il. THE COURT BELOW ERRONEOUSLY CHARAC-

TERIZED § 944.277 AS A PROCEDURAL LAW.

The district court’s order denying Mr. Lynce’s petition

for a writ of habeas corpus relied almost exclusively on

the Eleventh Circuit’s decision in Hock v. Singletary, 41

F 470 (11th Cir. 1995), cert. denied, 116 S. Ct. 715

( . The Eleventh Circuit affirmed the district court

without opinion, apparently relying on Hock as well.” In

Hock, the Eleventh Circuit held that laws rendering a

convicted murderer retroactively ineligible for control re-

lease did not violate the Ex Post Facto Clause. See id.

at 1471-73. In a short opinion, the court reasoned that

the Ex Post Facto Clause was not implicated because the

control release law was “procedural” in nature and, there-

fore, did not affect the quantum of punishment attached

to the crime.” See id. at 1472. This holding was errone-

ous.

nolo contendere. Cf. Eady vy. Florida, 622 So. 2d 61 (Fla. ist Dist.

Ct. App. 1993) (per curiam) (misinformation provided by counsel

regarding effect of provisional release credits on length of incar-

ceration constitutes ineffective assistance of counsel).

%6 The Eleventh Circuit decided Hock several months before this

Court’s Morales decision. Therefore, Hock did not benefit from

this Court’s most recent teaching on the Ex Post Facto Clause.

This Court recently vacated a decision of the Florida Supreme

Court involving similar issues, and remanded the case to the

Florida Supreme Court for further consideration in light of

Morales. See Calamia v. Singletary, 115 S. Ct. 1995 (1995) (mem.).

Hock, in turn, relied in large part on pre-Morales decisions of the

Florida Supreme Court. It is not clear that the Eleventh Circuit

or the Florida Supreme Court would reach the same conclusion

regarding the issues presented in Hock after Morales.

8? The court alternatively held that control release was too con-

tingent on prison overcrowding to support a reasonable expectation

of reduced punishment. See Hock, 41 F.3d at 1472-73.

—-

30

A. The 1992 Act Is Not a Procedural Law, Because It

Increased the Punishment Attached to Certain

Crimes.

To be sure, the protections of the Ex Post Facto Clause

were not intended “to limit the legislative control of . . .

modes of procedure which do not affect matters of sub-

stance.” Beazell v. Ohio, 269 U.S. 167 (1925). In the

ex post facto context, this Court has assigned the word

“procedural” a clear meaning: procedural changes are

those that produce “no change in the quantum of punish-

ment attached to the crime.” Dobbert v. Florida, 432

U.S. 282, 294 (1977). In stark contrast, the 1992 Act

directly resulted in the arrest and re-incarceration of peti-

tioner and the addition of several years to his punishment.

This undeniable increase in punishment attached to peti-

tioner’s crime precludes characterization of the 1992 Act

as merely procedural. See id. at 293-94.

The substantive nature of the 1992 Act is even more

clear when it is compared with laws which this Court has

found to be procedural. The statute in Beazell presents

a clear example of a procedural law. There, the Court

held that a law authorizing for the first time the joint

trial of persons jointly indicted for a felony was proce-

dural, because it affected only the manner in which the

trial would be conducted and not the definition of the

crime or the extent of the punishment. See Beazell, 269

U.S. at 170. Collins v. Youngblood, 497 U.S. 37 (1990),

presented a challenge to a statute authorizing an appellate

court to reform the defective judgment of a trial court

by deleting a fine not authorized by statute, without grant-

ing an entirely new trial as required by prior law. In

holding that the law was procedural, the Court stated

that “it is logical to think that the term [“procedural”]

refers to changes in the procedures by which a criminal

case is adjudicated, as opposed to changes in the sub-

stantive law of crimes.” /d. at 45. Finally, the Court in

Dobbert held that a law that altered the division of labor

between judge and jury in capital trials was procedural,

31

because it “simply altered the methods employed in deter-

mining whether the death penalty was to be imposed;

there was no change in the quantum of punishment at-

tached to the crime.” 432 U.S. at 293-94.

By contrast, statutes that retroactively enhance the

severity of a crime for purposes of determining its pun-

ishment are not procedural. In unanimously striking

down a retroactive change in the Florida sentencing

guidelines, this Court distinguished the case before it

from Dobbert:

The 20% increase in points for sexual offenses in

no wise alters the method to be followed in determin-

ing the appropriate sentence; it simply inserts a larger

number into the same equation.

Miller v. Florida, 482 U.S. 423, 433-34 (1987).

Likewise, in the instant case, the 1992 Act left un-

touched the procedures for determining wvhether inmates

not excluded by the statute would be granted provisional

release credits. The award of such credits remained con-

tingent on maintaining the same behavior record necessary

for good behavior credits and upon the size of the prison

population. However, the 1992 Act changed the legal

consequences and quantum of punishment attached to par-

ticular crimes. Those convicted of attempted murder

were declared ineligible for provisional credits based on

the nature of their crimes. This result is the same as if

(as in Miller), the legislature had assigned more “offense

points” to attempted murder and retroactively excluded

those inmates from eligibility for early release credits on

the basis of their increased offense points. In the early

release context, it is difficult to imagine a clearer example

of a substantive change in the penal law.

32

B. Florida’s Purpose in Adopting the 1992 Act Is Irrele-

vant to the Determination of Whether the Statute

Is Procedural.

The Eleventh Circuit’s conclusion in Hock that changes

in the laws governing “control release” credits are pro-

cedural rests on the premise that overcrowding credit

statutes and amendments were enacted solely to address

an “administrative problem.” Hock, 41 F.3d at 1472.

This premise is doubtful and, even if correct, does not

determine whether the law is procedural.” Relying heav-

ily on the Florida Supreme Court’s opinion in Dugger Vv.

Rodrick, 584 So. 2d 2, 4 (Fla. 1991), cert. denied sub

nom. Rodrick v. Singletary, 502 U.S. 1037 (1992), the

Hock court emphasized that the purpose of the control

release statute was to “address the administrative problem

of prison overcrowding, not to confer a benefit on the

prison population.” Hock, 41 F.3d at 1472. However,

the fact that a penal law was enacted for administrative

convenience has never been held to insulate it from the

88 Morales indicates that the motivation of the enacting legisla-

ture is irrelevant to the ex post facto inquiry. See id. at 1605.

However, even if legislative motivation were relevant, it is doubt-

ful that the Florida Legislature’s intent in amending § 944.277 was

limited to its administrative concerns regarding prison overcrowd-

ing. Any inquiry into legislative intent properly must focus on

the changes effected by the 1992 amendment, i.e., the expansion of

the list of offense-based exclusions. The motivation of the Legisla-

ture in enacting the origina! early release credits program estab-

lished by § 944.277 is immaterial to this assessment. While the

Florida Attorney General erroneously opined that “(t]he statute

is not tied to inmate conduct” to support his claim that the 1992

Act was purely administrative, in the very next sentence he referred

to the “legislative intent” evident in the 1992 amendment “to

remove [inmates convicted of murder offenses} from the pool of

eligible inmates.” Letter to Secretary Singletary (Dec. 31, 1992)

(App. D). Because the 1992 Act rendered selected inmates ineligible

for early release credits on the basis of their crimes, any argu-

ment that the Florida Legislature enacted the Act purely out of

administrative convenience and without regard for substantive

issues of punishment stretches credulity.

33

requirements of the Ex Post Facto Clause. This Court

has never wavered from the principle that penal provi-

sions, even when “accorded by the grace of the legis-

lature,” are unconstitutional if they operate to increase

punishment retroactively. See, e.g., Weaver, 450 US. at

30-31. The Court’s opinion in Morales makes clear that

the proper focus of the inquiry is on the actual effect of

the law on the prisoner’s punishment, not on the legis-

lature’s motivation for enacting the la

115 S. Ct. at 1605." s ae cone

Incarceration is punishment, and longer incarcerati

Is greater punishment. By eithdeiiilite 1,860 dies ef

Provisional credits from Mr. Lynce, the 1992 Act en-

hanced his punishment by lengthening his term of incar-

ceration. The clear import of the Court’s ex post facto

decisions is that a statute retroactively effecting such a

substantial change in punishment is unconstitutional. Con-

trary to the command of the Ex Post Facto Clause. the

1992 Act had the intent and effect of singling out a group

of offenders—a group that included the Petitioner—and

increasing the punishment attached to their crimes after

those crimes had been committed.

*® The Third Circuit understands Morales to stand for the propo-

sition that the only relevant inquiry is into the effect of the new

law on punishment. See Artway Vv. Attorney General, 81 F.3d 1235

1260-61 (8d Cir. 1996) (“The opinion . . . [in Morales] spends

the bulk of its analysis examining the effect of the legislative

change on Morales. . . . In doing so, it concedes that a measure

effectively extending a sentence of imprisonment constitutes pun-

ishment, presumably regardless of the legislature’ a

(internal citation omitted). asiiature’s motivetion.”)

34

CONCLUSION

The judgment of the court of appeals should be re-

versed and the Petition for Writ of Habeas Corpus should

be granted.

Respectfully submitted.

Of Counsel: H. JAY STEVENS

CARTER G. PHILLIPS JOEL T. REMLAND *

PAUL A. HEMMERSBAUGH Federal Public Defender

Middle District of Florida

SIDLEY & AUSTIN

1722 Eye Street, N.W. 80 N. Hughey Avenue

Washington, D.C. 20006 Suite 417

(202) 736-8000 Orlando, FL 32801

(407) 648-6338

Counsel for Petitioner

July 12, 1996 * Counsel of Record

a

x

la

APPENDIX A

1992 SUPPLEMENT TO FLORIDA STATUTES 1991

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 Gov-

ernor 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;

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

1 Note.—

A. Section 3, ch. 90-186 provides that “[a] person who is con-

victed, or has been previously convicted, of committing prior to the

effective date of this act a lewd or indecent assault or act specified

in section 944.277(1)(c), Florida Statutes, is eligible for provi-

sional credits. However, a person who is convicted or has been

previously convicted, of committing or attempting to commit a

lewd or indecent assault or act as a result of masturbating in

public, exposing the sexual organs in a perverted manner, or non-

consensual handling or fondling of the sexual organs of another

person is not eligible for provisional credits.”

B. Section 19, ch. 90-337, provides that “[e)ffective July 1, 1990,

an inmate convicted of a lewd or indecent act not listed in

8. 944.277(1) (c), Florida Statutes, shal] receive retroactive benefit

of all provisional credit awards made during the service of his

sentence, provided that he is not otherwise ineligible for, or

excluded from, receiving such an award.” Chapter 90-337 was

signed into law on July 3, 1990.

2a

battery, incest, or any of the following lewd or

indecent assaults or acts: masturbating in public;

exposing the sexual organs in a perverted man-

ner; or nonconsensual handling or fondling of

the sexual organs of another person;

. Is convicted, or has been previously convicted,

of committing or attempting to commit assault,

aggravated assault, battery, or aggravated bat-

tery, and a sex act was attempted or completed

during commission of the offense;

. Is convicted, or has been previously convicted,

of committing or attempting to commit kidnap-

ping, burglary, or murder, and the offense was

committed with the intent to commit sexual bat-

tery or a sex act was attempted or completed

during commission of the offense;

. Is convicted, or has been previously convicted,

of committing or attempting to commit false im-

prisonment 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;

. Is sentenced, or has previously been sentenced, or

has been sentenced at any time under s. 775.084,

or has been sentenced at any time in another

jurisdiction as a habitual offender;

. 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 s. 943.10(1), (2), (3), (6),

(7), (8), or (9); or against a state attorney or

3a

assistant state attorney; or 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 posi-

tion by any other jurisdiction; or

i. Is convicted, or has been previously convicted, of

committing or attempting to commit murder in

the first, second, or third degree under s. 782.041

(1), (2), (3), or (4); or has ever been con-

victed of any degree of murder in another juris-

Retlen: of

j. Is serving a concurrent sentence in another state

or federal jurisdiction.

In making provisional credit eligibility determinations, the

department may rely on any document leading to or gen-

erated during the curse of the criminal proceedings in-

volving the inmate, including, but not limited to, any

presentence or postsentence investigation or any informa-

tion contained in arrest reports relating to circumstances

of the offense.

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 97.5 percent of lawful capacity, at which

time the authority granted to the secretary will cease,

and the secretary shall notify the Governor in writing

of the cessation of such authority.

3. At such time as provisional credits are granted, the

Department of Corrections shall establish a provi-

sional release date for each eligible inmate incar-

cerated, 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

4a

type of release program of the department is not

eligible for an award of provisional credits.

. 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, who receives

30 or more days of provisional credits, and who is

not required to be released only under conditional

release supervision pursuant to ss. 944.291 and

947.1405 must be released into the provisional re-

lease supervision program on his provisional release

date, unless such inmate is also serving a sentence

for an offense that occurred before July 1, 1988.

The department shall contract with public or private

organizations for the delivery of basic support serv-

ices while an inmate is in the provisional release

supervision program. Support services shall include,

but not be limited to, substance abuse counseling,

temporary housing, family counseling, and employ-

ment support programs. Inmates who are released

into the provisional release supervision program are

not eligible for any additional gain-time. If an in-

mate has received a term of probation, community

control supervision, conditional release supervision,

or control release supervision to be served after his

release from incarceration, the period of probation,

community control supervision, conditional release

supervision, or control release supervision must be

substituted for the period of supervision under the

provisional release supervision program.

. The terms and conditions of provisional release su-

pervision must be specified in writing, and a copy

must be given to the inmate at the time of his re-

lease from incarceration. If the inmate’s conviction

was for a controlled substance violation, the condi-

tions shall include a requirement that the inmate

submit to random substance abuse testing intermit-

5a

tently through the term of supervision, upon the

direction of the correctional probation officer as de-

fined in s. 943.10(3). The term of supervision must

be equal to the number of provisional credits ac-

crued, but may not exceed 90 days unless extended

as provided in subsection (7).

. If an inmate violates any term or condition of pro-

visional release supervision, the Department of Cor-

rections may take any of the following action:

a. Continue provisional release supervision.

b. Extend the term of supervision not to exceed

the total number of provisional credits the in-

mate 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 super-

vision program may be canceled as prescribed by

department rule.

. If an inmate absconds from provisional release su-

pervision, 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.

. The Department of Corrections shall adopt rules

to implement the provisional release supervision

program.

History.—s. 5, ch. 88-122; s.4, ch. 89-100; s.5, ch.

89-526; s. 5, ch. 89-531; s. 2, ch. 90-77; s. 1, ch. 90-186;

s. 14, ch. 90-337; s. 14, ch. 91-280; s. 12, ch. 92-310.

6a

APPENDIX B

{Relevant Excerpts Only—Full Document

Lodged with the Court]

AGO 92-96—DECEMBER 29, 1992

CORRECTIONS, DEPARTMENT OF—INMATES—

GAIN-TIME

AWARD OF PROVISIONAL CREDITS

TO INMATES CONVICTED OF

CERTAIN OFFENSES

To: The Honorable Gary Siegel, Senator, District 12;

The Honorable Norman R. Wolfinger, State At-

torney, Eighteenth Judicial Circuit; Mr. Harry

K. Singletary, Jr., Secretary, Department of

Corrections

You recognize that there is great concern in Central

Florida regarding the impending release of Donald Glenn

McDougall who was convicted of second degree murder

and aggravated child abuse. The Department of Correc-

tions has calculated provisional release credits under

s. 944.277, F.S. (1992 Supp.), for McDougall which

would dramatically reduce the time he must serve under

his original sentence.’ There is concern, however, that

the provisions of s. 944.277, F.S. (1992 Supp.) were not

intended to operate to permit the early release of con-

victed felons such as McDougall. You, therefore, ask my

opinion regarding the interpretation of s. 944.277, F.S.

(1992 Supp. ).

While your concern regarding the impending release

of McDougall prompted your inquiries to this office, the

1 This office has been advised by the Department of Corrections

that since January 1991, the provisions of s. 947.146, F.S., creating

a controlled release program, have been used to regulate the prison

population. However, McDougall’s scheduled release is based upon

a calculation of provisional credits pursuant to s. 944.277, F-.S.

7a

questions you pose are general in nature and may be

substantially stated as follows:

QUESTIONS: ...

* a * *

3. Does s. 944.277(1)(i), F.S. (1992 Supp.), pro-

hibit provisional credits being awarded to an inmate

convicted of murder?

SUMMARY:...

* * a *

3. Section 944.277(1)(i), F.S. (1992 Supp.), pro-

hibits provisional credits being awarded to an inmate

who has been convicted of murder, regardless of when

such conviction occurred.

AS TO QUESTION 3:

Section 944.277(1)(i), F.S. (1992 Supp.), prohibits

the awarding of provisional credits to an inmate who has

been convicted of murder.* The prohibition was added

to s. 944.277 by Ch. 89-100, Laws of Florida. In so

amending the statute, the Legislature did not set forth

the entire text of subsection (1) but only the newly

created paragraphs (h) and (i) as amendments to that

subsection.” Section 6 of Ch. 89-100 provided that the

act took effect January 1, 1990, and would apply to

offenses committed on or after the effective date. The

Division of Statutory Revision, in compiling the 1989

Florida Statutes, appended a footnote to s. 944.277(1) (h)

and (i), recognizing that the provisions of those para-

* See, s. 944.277(1) (i), F.S. (1992 Supp.), prohibiting the award

of provisional credits to an inmate who:

Is convicted, or has been previously convicted, or committing

or attempting to commit murder in the first, second, or third

degree under s. 728.04(1), (2), (3), or (4); or has ever been

convicted of any degree of murder in another jurisdiction. .

* See, s. 4, Ch. 89-100, Laws of Florida.

graphs applied only to offenses committed on or after

January 1, 1990.

Section 944.277(1), F.S. 1989, was amended by Ch.

90-186, Laws of Florida, which set forth the entire text

of the subsection. Section 4 of Ch. 90-186, Laws of Flor-

ida, stated that the act “shall take effect October 1, 1990,

and shall apply to offenses committed on or after the effec-

tive date.” The reference to s. 944.277(1) in the 1991

Florida Statutes notes that subsection (1) applies to of-

fenses committed on or after October 1, 1990; the foot-

note to paragraphs (h) and (i) which had been contained

in the 1989 Florida Statutes was deleted.

The 1992 Legislature again amended subsection (1)

of s. 944.277, F.S., setting forth the entire text of the

subsection in s. 12, Ch. 92-310, Laws of Florida. In pre-

scribing an effective date, however, the act contained no

restriction on the subsection’s application to offenses com-

mitted after a certain date. The 1992 Supplement to the

Florida Statutes does not recognize any such limitation for

any provision of subsection (1).

As noted supra, s. 944.277, F.S., establishes the pro-

cedures to be used by the Department of Corrections to

reduce the prison population and is not a substantive

matter of punishment or reward. Statutes relating to

remedies or procedures operate retrospectively.‘ Thus,

absent a limitation, s. 944.277, F.S., as a procedural stat-

ute, applies retroactively. The courts have expressly Tec-

ognized that the statute may be retroactively applied.

It was thus necessary for the Legislature in 1989 and

1990 to impose a limitation in order for the provisions

of subsection (1) to operate prospectively only."

* Fogg v. Southeast Bank, N.A., 473 So.2d 1352 (4.D.C.A. Fla.,

1985).

5 See, Dugger v. Rodrick, supra.

® Cf. Dominquez v. State, 17 F.L.W. D1853, 1854 (1 D.C.A. Fla.,

filed July 29, 1992), recognizing that in order for the statute to be

9a

Such a limitation, however, was not imposed with the

amendment of subsection (1) in 1992, and absent such

a limitation, the provisions of that subsection would apply

retroactively. Such a construction is consistent with the

position which appears to have been taken by the Division

of Statutory Revision, which is responsible for facilitating

the correct and proper interpretation of the Florida

Statutes.’

Accordingly, I am of the opinion, until legislatively or

judicially determined otherwise, that s. 944.277(1)(i),

F.S. (1992 Supp.), prohibits provisional credits being

awarded to an inmate who has been convicted of murder,

regardless of when such offense occurred.

* * x ok

In summary, therefore, inasmuch as McDougall was

convicted of murder in the second degree, he would appear

to be precluded from receiving provisional credits pur-

suant to s. 944.277(1)(i), F.S. (1992 Supp.). More-

over, if the Secretary of Corrections determines that Mc-

Dougall was convicted of aggravated child abuse with

battery or aggravated battery as an element of that of-

fense and that a sex act was attempted or committed

during the commission of that offense, he would be pre-

cluded from receiving provisional credits pursuant to

s. 944.277(1)(d), F.S. (1992 Supp. ).

applied prospectively only, a specific proviso for offenses occurring

after a certain date was needed. I am not unmindful that in that

case the court held erroneous the interpretation given by the De-

partment of Corrections that s. 944.277(1) (i) excluded murderers

from receiving provisional credits who had committed any criminal

offense after January 1, 1990, and had a prior murder conviction.

The court stated that the statute disqualified murderers who com-

mitted a murder after January 1, 1990. The court, however, was

interpreting the provisions of s. 944.277, F.S. 1989, and not the

subsequent amendments to the statute in 1990 and 1992. and, thus,

the court’s decision would appear to be of limited application.

7 See, s. 11.242, F.S.

10a

APPENDIX C

[FLORIDA DEPARTMENT OF CORRECTIONS

LETTERHEAD]

December 30, 1992

The Honorable Robert A. Butterworth

Attorney General

Office of the Attorney General

The Capitol

Tallahassee, Florida 32399-1050

Dear General Butterworth:

The Department of Corrections has reviewed the opinion

issued on December 29 in response to the questions sub-

mitted by the Department, Senator Siegel and State At-

torney Wolfinger. A portion of the opinion issued in

response to a question which I understand was submitted

by State Attorney Wolfinger raises additional questions

which require clarification before the Department may

fully determine the impact of the opinion and apply it

appropriately.

As you are aware, the specific question relating to the

possible retrospective exclusion of murders under the

amendments to Section 944.277(1)(i) and later statu-

tory enactments was not initiated by the Department, due

to the opinion of the First District Court of Appeal in

Dominquez v. State, 17 F.L.W. D1853 (Fla. Ist DCA,

July 29, 1992). The opinion issued on December 29

indicates that the Dominquez opinion has limited appli-

cation. The Department has not seen the question sub-

mitted by State Attorney Wolfinger and, therefore, did

not have benefit of the information, if any, accompanying

the question. Thus, the Department does not know the

full foundation upon which the opinion may be based.

For this reason, the Department submits the questions

at the end of this letter in connection with the opinion

lla

issued on December 29 to be sure of the full import of

the opinion prior to its application.

Preliminarily, I note the following. In two places within

the opinion, you state that the Department has “calcu-

lated” provisional release credits under s. 944.277 (see

page 1 and footnote 1). The Department was contacted

yesterday by defense counsel who represent offenders in

this area of the law regarding this language and whether

the opinion would require the voiding of provisional

credits. They argue that the Department has not merely

calculated provisional credits but has granted and awarded

a total of 1860 credits between July 1, 1988 and January

18, 1991; the date of the last award of credits following

implementation of control release under s. 947.146. The

application of these credits was made under s. 944.277(4).

The initial summary of the opinion, the final paragraph

of the response to questions three, and the closing para-

graph of the opinion all indicate that the amendments to

s. 944.277(1)(i) now preclude the award of provisional

credits under that section; however, the opinion does not

make clear whether credits previously granted are subject

to being voided or whether the retrospective effect of the

amendments is accomplished through the denial of future

credits to all inmates who formerly were eligible for pro-

visional credits. The final summary paragraph of the

opinion indicates that “inasmuch as McDougall was con-

victed of murder in the second degree, he would appear

to be precluded from receiving provisional credits pursu-

ant to s. 944.277(1)(i), F.S. (1992 Supp.).” Since all

the awards of provisional credits granted and applied to

reduce Mr. McDougall’s overall release date were made

on or prior to January 18, 1991, the only way to preclude

the release of McDougall’ and other similarly situated

offenders is to void credits previously granted.

'The Department notes that McDougall’s credits have already

been voided on the basis of other portions of the opinion issued on

December 29, 1992, related to his conviction for aggravated child

abuse.

12a

Defense counsel also pointed out that while the decisions

of The Supreme Court of Florida in Dugger v. Rodrick,

584 So.2d 2 (Fla. 1991), cert. denied, 112 S.Ct. 885

(1992), and Dugger v. Grant, 17 F.L.W. S744 (Fla., De-

cember 10, 1992),’ confirm that the early release mech-

anism under Section 944.277 is remedial in nature and

do not create any substantive or procedural “liberty” due

process rights, these decisions do not appear to specifically

address whether an inmate may have a vested right to

retain credits which have already been granted and ap-

plied to his release date. See, § 944.277(4), Fla. Stat.

(1991) (“{a]ny eligible inmate who is incarcerated on

the effective date of an award of provisional credits shall

receive such credits”); cf. Waldrup v. Dugger, 562 So.2d

687, 694-695 (Fla. 1990) (gaintime statutes do not cre-

ate vested rights until gain-time actually is awarded).

Furthermore, defense counsel contend that the only stat-

utory authority given the Department to void or cancel

credits appears in s. 944.277(7)(c). The Department ad-

vised defense counsel that a clarification of the opinion

was to be requested as to the question of cancellation of

the credits and that these concerns would be brought to

your attention.

With this background, the Department now seeks clarifi-

cation of the opinion issued on December 29, 1992:

Do the 1992 amendments to s. 944.277(1) as dis-

cussed in Question Three of the December 29 opin-

ion require that the Department void or cancel pro-

visional credits previously given to offenders now

excluded by s. 944.277(1) (i)?

If so, is the cancellation or credits limited only to

those offenders who were in custody on July 6, 1992,

the effective date of the 1992 amendments, or must

the cancellation be extended to those released prior

2 The Department notes that the Grant decision is not yet final

as a motion for rehearing has been filed and remains pending.

13a

to that date but still under supervision by the De-

partment on that date?

If cancellation of credits extends to those offenders

still under supervision on July 6, 1992, and an

offender has since completed supervision, must that

offender be returned to custody to complete service

= a sentence remaining after cancellation of

credits’

If cancellation of credits is mandated for all offenders

in custody on July 6, 1992, and the Department re-

leased an offender affected by s. 944.277(1)(i) for

expiration of sentence or to supervision on or after

July 6, 1992, because of application of provisional

release credits prior to January 19, 1991, must that

offender be returned to custody to serve the balance

of the sentence remaining after cancellation of

credits?

Is an offender who must be returned to custody

following cancellation of credits entitled to credit for

time out of custody under the principles of Sutton vy.

Department of Corrections, 531 So.2d 1009 (Fla.

St. DCA 1988) and Carson v. State, 489 So.2d 1236

(Fla. 2d DCA 1986).

On December 31, 1992, the Department is scheduled to

release offenders impacted by s. 944.277(1)(i) who pre-

viously received provisional credits under earlier eligibility

periods.

Because of these impending releases, the Department re-

spectfully asks that your office give expedited considera-

tion to this clarification request.

Sincerely,

/s/

Harry K. Singletary, Jr.

Secretary

cc: Louis A. Vargas, General Counsel

l4a

APPENDIX D

[STATE OF FLORIDA LETTERHEAD]

December 31, 1992

Mr. Harry K. Singletary, Jr.

Secretary

Department of Corrections

2601 Blairstone Road

Tallahassee, Florida 32399-2500

Dear Secretary Singletary:

In light of this office’s opinion in AGO 92-96, you ask

additional questions about the department’s responsibili-

ties under s. 944.277 F.S. (1992 Supp.). Your questions

may be summarized as follows:

1) In light of the 1992 amendments to s. 944.277

(1), F.S. (1992 Supp.), are inmates convicted of

murder who are currently in the custody of the De-

partment of Corrections eligible for release regardless

of when the administrative calculation of provisional

credits pursuant to s. 944.277 was made?

2) Must the Department of Corrections recommit

inmates convicted of murder who have been released

after July 6, 1992, by the department based in part

on the department’s calculation of provisional

credits?

As your questions are interrelated, they will be answered

together.

As discussed in AGO 92-96, the Legislature, with the

1992 amendment of s. 944.277(1), F.S., has manifested

its intent that murderers are precluded from receiving pro-

visional credits, regardless of when such conviction oc-

curred. While you have referred to s. 944.277(4), FS.

(1992 Supp.), which states that eligible inmates shall re-

lieve prison overcrowding and is permissive rather

than mandatory.’ The statute is procedural only. As the

Court made clear in the broad language of its recent deci-

may be withdrawn, modified or denied by s t

islation.* Calculation of provisional ok povereyt 4

does not preclude the Legislature from modifying the

statute to prohibit the release of certain offenders under

this program since the exclusive purpose of the program

is to relieve prison overcrowding. The statute is not tied

to inmate conduct.

The amendment of the statute in 1992 manifests a legisla-

tive intent to remove these offenders from the pool of

eligible inmates. Therefore, I am of the opinion that an

inmate who has been convicted of murder and is in cus-

tody on or after July 6, 1992, is no longer eligible for

release based upon an administrative calculation of provi-

sional credits pursuant to s. 944.277, F.S. (1992 Supp.),

regardless when such calculation was made.

While I am not aware of, nor have you drawn my atten-

tion to, any Florida court decision which compels the

department to recommit inmates released after July 6,

* See, e.g., Dugger v. Rodrick, 584 So.2d 2 (Fla. 1991), cert.

denied, 112 S.Ct. (1992).

217 F.L.W. 8744, 746 (Fla., filed December 10, 1992), pet. for

rehearing pending.

* Dugger v. Rodrick, supra, in which the Court held that the

retroactive application of the inmate population control statute,

as a procedural rather than substantive law, is not an ex post facto

law, even though it may work to the disadvantage of the prisoner.

16a

1992, the department retains jurisdiction over a prema-

turely released prisoner so long as his sentence has not

expired.* The department as an administrative agency,

however, must act in accordance with statutory directives.°

The early release of an inmate without statutory authority

does not excuse the inmate from serving the balance of

his or her sentence and he or she may be recommitted by

prison authorities unless judicially or legislatively deter-

mined otherwise.°

I trust that the above comments may be of some assistance

to the Department of Corrections in meeting its statutory

duties.

Sincerely,

/s/

Robert A. Butterworth

Attorney General

*See, Carson v. State, 489 So.2d 1236 (2 D.C.A. Fla. 1986)

(when an inmate is released or discharged from prison by mistake,

he may be recommitted if his sentence would not have expired had

he remained in confinement). When an inmate is released from

prison by mistake, his sentence continues to run in the absence of

some fault on his part. Sutton v. Department of Corrections, 531

So.2d 1009 (1 D.C.A. Fla., 1988). Thus an inmate recommitted by

the department is entitled to credit for the time he spent at liberty.

5 See, e.g., Schiffman v. Department of Professional Regulation,

Board of Pharmacy, 581 So.2d 1375 (1 D.C.A. Fia., 1991) (admin-

istrative agency has only that authority which the Legislature has

conferred by statute); City of Cape Coral v. GAC Utilities, Inc.,

281 So. 2d 498 (Fla. 1978).

* See, e.g., Johnson v. State, 561 So.2d 1254 (2 D.C.A. Fla., 1990)

(fact an inmate was mistakenly released from custody before

serving a prison sentence did not terminate that sentence) ; Green

v. Christiansen, 732 F.2d 1397, 1400 (9 Cir. 1984).