Respondents Brief — Lynce v. Mathis

Supreme Court brief1997

Ask Donna

What actually matters in this document.

Text

BEST AVAILABLE COPY__

QUESTION PRESENTED

Whether the retroactive application of Florida Statute §

944.277 (Supp. 1992), by withdrawing credits previously

allocated petitioner for release solely to alleviate prison

overcrowding, increases the punishment for petitioner’s

1985 offense of conviction in violation of the Ex Post Facto

Clause of the United States Constitution.

TABLE OF CONTENTS

QUESTION PRESENTED....................005

TABLE OF CONTENT S..............cssseseeeees

TABLE OF AUTHORITIES...................+5.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED...................

STATEMENT OF THE CASE...................

EE ER

2. Florida’s Overcrowding Statutes -

An Exercise in Prison Crisis

THE 1992 AMENDMENTS TO FLORIDA

STATUTES SECTION 944.277 WHICH

RETROACTIVELY REMOVED CERTAIN

CLASSES OF VIOLENT OFFENDERS

FROM ELIGIBILITY FOR RELEASE TO

ALLEVIATE PRISON OVERCROWDING

DID NOT INCREASE PETITIONER'S

PUNISHMENT AND, THEREFORE, DID

NOT VIOLATE THE EX POST FACTO

CR Ale cccccccccccccccccccccccccscsoceoccocsces

Provisional Credits And Other Forms of

Overcrowding Gain-Time Are Neither An

Integral Part of the Punishment Attached to

Petitioner's Crimes Nor A _ Critical

Determinant of the Length of Petitioner's

Incarceration Because Their Are Part of

Administrative Procedures Designed To

Alleviate Prison Overcrowding, A

Phenomenon Created By Factors Unrelated

to a Prisoner’s Punishment.................--

At the Time Petitioner Committed His

Crimes, Petitioner Could Not Have

Reasonably Expected That He Would

Benefit From A Non-Existent Statute.......

UNDER THE LINDSEY-WEAVER-MILLER

RULE, FLORIDA’S OVERCROWDING

STATUTES DO NOT AFFECT A

PRISONER’S PUNISHMENT WITHIN

THE MEANING OF THE EX

POST FACTO CLAUSE..................0+5

THE EX POST FACTO CLAUSE DOES

NOT PROTECT A RIGHT TO THE

CONTINUED MISAPPLICATION OF

LAW. THEREFORE, BECAUSE

PETITIONER WAS UNLAWFULLY AND

ERRONEOUSLY DISCHARGED FROM

CUSTODY AFTER HE WAS DEEMED

INELIGIBLE FOR EARLY RELEASE

UNDER THE 1992 ACT, THE FDOC

WAS ENTITLED TO RETURN THE

CONCLUSION

PETITIONER TO PRISON TO

COMPLETE THE REMAINDER OF

THE SENTENCE IMPOSED.................

The Exclusionary Provisions of Florida’s

Overcrowding Statutes, As Part of An

The Corrected Interpretation of the 1992 Act

By the Florida Attorney General and the

Subsequent Judicial Validation of That

Interpretation Did Not Unconstitutionally

Extend The Retroactive Reach of the

The Ex Post Facto Clause of the

Constitution Does Not Confer A Right to the

Continued Misapplication of Law............

TABLE OF AUTHORITIES

CASES Page

Beazell v. Ohio, 269 U.S. 167 (1925)............ 17,21,29

Blankenship v. Dugger, 521 So.2d 1097

GRR, Ti iccccecscccccwcccsssnccsocscncesesvescceccsed passim

Bouie v. Columbia, 378 U.S. 347 (1964)............ 37,38

Bowen v. Georgetown University Hosp.,

GED UD, FS Gite ecccccctscccccscescccesecsccescccscee: 35

Caballery v. United States Parole Commission,

673 F.2d 43, cert. denied,

GBF GB, BERD Gieitoseccsccscccnssccesccsccscssess 39,40

Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798)......... 16,17

California Dept. of Corrections v. Morales,

Pte Re. of). rT passim

Carson v. State, 489 So.2d 1236 (Fla. 2 Dist.

C2. ABB. Ti Dicccccccccoscccesccccsssnsesccesscccsceses 13,39

Collins v. Youngblood, 497 U.S. 37 (1990)...........+.. 30

Cortinas v. United States Parole Commission,

_ fe f f |. | Swe 39,40

Costello v. Wainwright, 397 F.Supp. 20

(M.D. Fla. 1975), aff'd 525 F.2d 1239

Sy Ge Be iicccedcccsedcncddeccatbtantanccccccocccseees 4,28

Douglas v. Buder, 412 U.S. 430 (1973)..............006 37

Dugger v. Rodrick, 584 So.2d 2 (Fla. 1991),

cert. denied sub nom. Rodrick v. Singletary,

. ¢ be 6 REE EE Ea passim

Eidson v. State, 67 So.2d 248

, Ob See & | Serr 6,21

Gant v. State, 642 So.2d 84

(Pin. 2 Dist. Ce. Agp. IDDSE)......cccccccccccccceccccvccees 21

Giles v. State, 462 So.2d 1063 (Ala.Cr.App.1985)...... 39

Glenn v. Johnson, 761 F.2d 192 (4th Cir. 1985)...... 39,40

Green v. Christiansen, 732 F.2d 1397 (9th Cir. 1984)....39

Griffin v. Singletary, 638 So.2d 500 (Fla. 1994).....passim

TABLE OF AUTHORITIES (cont’d)

Page

Herring v. Singletary, 879 F.Supp. 1130

| EEA F ee 21,38

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

cert. denied 116 S.Ct. 715 (1996)................. 14,21,29

Johnson v. State, 561 So.2d 1254

8 Ere 39

Landgraf v. USI Film Prods., 114 S.Ct. 1483 (1994)...35

Lindsey v. Washington, 301 U.S. 397 (1937).............. 31

Marks v. United States, 430 U.S. 188 (1977)........... 37,38

Miller v. Florida, 482 U.S. 423 (1987)..................4. 31

Raske v. Martinez, 876 F.2d 1496 (11th Cir. 1989),

cert. denied, 493 U.S. 993 (1989)..............00000000ee 29

State v. Coleman, 149 Fla. 28, 5 So.2d 60 (1941)...... 40

State v. Moore, 630 So.2d 1235 (Fla. 2d DCA 1994)...21

Stephens v. Thomas, 19 F.3d 498

AE iT ie a 39,40

Sutton v. Strickland, 531 So.2d 1009

BF Re 13,39

Tripp v. State, 622 So.2d 94 (Fla. 1993).................. 21

Weaver v. Graham, 450 U.S. 24 (1981)............... 18,20

Webb v. State, 630 So.2d 674

Ms Ms I, ns ccstccdcocecccetooes 21

White v. Pearlman, 42 F.2d 788

RE ES ee ae 40

CONSTITUTIONS, STATUTES, AND RULES

U.S. Const. art 1, § 10, Cl.L..........ccccceceeeeeeeee 2,13,17

1983 Fla. Laws ch. 83-131............0cccccceceeeeeeeeeeee 5,7

1989 Fla. Laws ch. 89-100..........ccccccccccccceeees 8,11,36

1989 Fla. Laws ch. 89-526...............cecccceeeeeeeeeeeee 36

1992 Fla. Laws ch. 92-310.........cccccccccccecccceeeeee. 8,11

CONSTITUTIONS, STATUTES, AND RULES (cont’d)

Page

woods Sl 8 ee 7,8,9

The Correctional Reform Act of 1983, 1983 Fla.

A SE GEE cccccibeoddborsdeenetevesesesoueusessbbodeal 25

6 T7S.GE2, Pin. Stat. (1FES)..ccccccccccsccccccccccccccssecee 26

§ 944.023, Fla. Stat. (Supp. 1992).............ccceeeeeeeees 4

BOO Fis Pees MIR, copsccecccvcteccvevcsecesscoccs 5,19,24,25

§ 944.275(1), Fla. Stat. (1983-1995). ...........ccccceeeeees 5

§ 944.275(1), Fla. Stat. (1985).............cceecceeeeeeeeees 26

6 OOS. ZISGIIED, FER. BR. cecccccccccccccccccccccesccccessess 11

PS, . rrr 11

§ 944.275(4)(a), Fla. Stat. (1985)............ccccceeeeees 5,9,27

§944.275(4)(b), Fla. Stat. (1985).............cceeceeeees 5,9,27

§ 944.275(4)(c), Fla. Stat. (1985)...........cccceceeeeeeeeeees 6

BEGG. Zien FE Mee ccccccccscccccccccccsescdevccccesosccees 5

OB GO6.ZIE, Fie, Bae, CIS rio civccocscccccctcccvccscccsccseses 5

GRR Bes Fey Wie bdo deesccccccccsccccedeccevecccoses 7,19

§ 944.277, Fla. Stat. (Supp. 1988).............cccceeeeeees 8,19

Ts SS OF 36

§ 944.277, Fla. Stat. (Supp. 1992).............cceeeeeee 1,2,19

§ 944,277(1), Fla. Stat. (Supp. 1992)................06: 7,13

§ 944.277(1)(h), Fla. Stat. (Supp. 1992).............. 8,11,36

§ 944.277(1)(i), Fla. Stat. (1989)............ccccceeeeeeees 10

§ 944.277(1)(i), Fla. Stat. (Supp. 1992)............. 8,11,36

§ 944.278, Fla. Stat. (1993)............scecsseceees 8,9,10,19

6 O66. 2B, FER: GRR, ccectcccesecoccccccccccccccesccscvessecsboses 5

6 O66. SEG, Fie. Bat. CITES). ccccccccccccccccccccccsscecess 7,19

§ 946.996, Pin. Beat. (IDES)... ..cccccccvcccccscccessosecccece 27

Pk ON, er ee 7

§ 944.598(2), Fla. Stat. (1985)............ccceceeeeeeeeeeeees 28

§ 944.598(3), Fla. Stat. (1985).............cceeeeeeeeeeeeeees 28

§ 944 .598(4), Fla. Stat. (1985)............ccceeeeeeeeeeeeeees 28

vii

CONSTITUTIONS, STATUTES, AND RULES (cont’d)

Page

Des Fe Bile CR icctciccccccocccccccccesocecccenss 9,36

§947.146(4)(i), Fla. Stat. (Supp. 1990)...................... 36

ei Wis Ms Wo ib Peaneccstnbedessdtecccccccccccceccssccess 26

Fla. R. Crim. P. 3.701(bz)(5)(1985) (reprinted in

The Florida Bar: Amendment to Rules of Criminal

Procedure (3.701, 3.988--Sentencing Guidelines),

a 23

ono cnrrccnrinenncnsngnnanennncenett 26

OTHER AUTHORITIES

1992 Op. Att’y Gen. Fla. 092-96

ET TE TT sti inicttsesccnencsscocoosocooees 8, 12,36

Corrections Overcrowding Task Force,

Final Report and Recommendations (1983)................ 28

Senate Staff Analysis and Economic

empact Statement - SB SA.......ccccsccccscccceccccsccsccees 23

Senate Staff Analysis and Economic

Impact Statement - SB G44..........ccccscccsccccescccevees 22

viii

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1995

No. 95-7452

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 RESPONDENT MATHIS.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

1. The Ex Post Facto Clause of the United States

Constitution, Article 1, 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)

have been set out in Petitioner's Appendix A. All other

statutory provisions of Florida Statutes relevant to this case

have been lodged by the petitioner under separate cover.

STATEMENT OF THE CASE

1. Overview

The petitioner is a prisoner in the custody of the Florida

Department of Corrections (FDOC). Respondent Mathis is

the Florida official who held petitioner in custody at the

time he filed his petition for writ of habeas corpus with the

federal district court in Florida. Respondent Butterworth

is the Attorney General of Florida.

This case involves a challenge to Florida’s cancellation of

1,860 days of "provisional credits" allocated to petitioner

because of prison overcrowding. These credits are one of

a series of four overcrowding control mechanisms used by

Florida to maintain its prison population under a cap

mandated by a federal consent decree. When necessary to

reduce the prison population, these credits, in limited

amounts, were allocated to a pool of statutorily eligible

inmates when a triggering threshold was reached.

In October 1992, because of overcrowding, petitioner was

released prior to reaching his actual release date.' The

FDOC released the petitioner, and others with like

offenses, based upon its initial interpretation of the 1992

amendments to the provisional credits statute, s. 944.277,

that the petitioner remained eligible for overcrowding

release. However, in December 1992, the Florida

Attorney General determined that the 1992 Florida

Legislature in fact had intended to remove petitioner and

—-— -

' The October 1992 release was based upon a provisional release

date forecast for prison overcrowding needs through the periodic allocation

of provisional credits.

similar offenders from eligibility for overcrowding release

by retroactively cancelling previously allocated credits.’

The Florida Attorney General’s interpretation was later

upheld by the Supreme Court of Florida.’ Because the

petitioner was determined statutorily ineligible for release,

he was returned to state custody to serve the remainder of

his sentence.

Petitioner challenged the cancellation of credits and his

return to custody through federal habeas corpus

proceedings, alleging a violation of the Ex Post Facto

Clause. The United States District Court for the Middle

District of Florida denied the petition and the Circuit Court

of Appeals for the Eleventh Circuit declined review. In

May 1996, this Court granted the petitioner’s petition for

writ of certiorari to determine whether the 1992 legislative

canceliation of the petitioner's overcrowding credits

violated the Ex Post Facto Clause of the U. S.

Constitution.

2. Florida’s Overcrowding Statutes - An Exercise In

Prison Crisis Management.

Since the early 1970s, the Florida prison system has

battled a burgeoning prison population. In 1972, a class

action brought in the federal district court in Jacksonville,

Florida, sought to close Florida’s prison system to

additional admissions and to reduce the existing population

2 1992 Op. Att’y Gen. Fla. 092-96 (December 29, 1992).

> Griffin v. Singletary, 638 So. 24 500 (Fla. 1994).

to acceptable constitutional levels.* The prison population

reached such crisis levels by 1974 that the FDOC’s

secretary three times temporarily closed the system to new

admissions.© In 1975, as a result of continued

overcrowding, the federal district court enjoined the FDOC

to lower its prison population to acceptable levels.°

Eventually, in 1980, the FDOC entered into a consent

agreement which capped the prison population and

established a lawful capacity which the Florida prison

population could not exceed without federal court

intervention.’

Florida sought ways to confront the seemingly

unstemmable flood of prisoners. In June 1982, when the

prison population threatened to extend beyond its federally

mandated cap, the Governor called a special session of the

legislature. Lodg. Doc. 76. During this session, the

Florida Legislature appropriated funds to construct, staff

and operate beds to resolve the immediate overcrowding

dilemma and created a Corrections Overcrowding Task

Force (COTF) to assess long-term solutions. /d.

* See Costello v. Wainwright, 397 F.Supp. 20 (M.D. Fla. 1975),

aff'd 525 F.2d 1239 (Sth Cir. 1976). This case, originally filed as a

challenge to prison medical care, was expanded to include overcrowding

concerns after the district court appointed counsel for the class.

> Costello, 397 F.Supp. at 22.

° Id.

7 “Lawful capacity” was defined as “the total design capacity of all

institutions and facilities in the state correctional system, increased by one-

third.” See § 944.023, Fla. Stat. (Supp. 1992). The consent decree

limitations were enacted by the Florida Legislature as part of the

termination of the agreed injunction. /d., n.1.

The COTF recommended comprehensive reform

legislation.* Lodg. Doc. 74.° Among other things, the

COTF made three significant public policy

recommendations. First, it prescribed replacing the

existing indeterminate sentencing system with a system of

sentencing guidelines. Lodg. Doc. 73, 112-113. This

proposal, it was thought, would not only make sentencing

more uniform and meaningful, but would also allow

predictability in prison population growth. Jd. Second, the

COTF recommended revamping the archaic gain-time

system provided under s. 944.275 to focus less on length

of service and more on good behavior and productive

activities." Lodg. Doc. 72-74. It was thought that the

* This legislation became known as The Correctional Reform Act

of 1983. 1983 Fla. Laws ch. 83-131. Included in the legislation were

provisions for development of a community control program, sentencing

reform (i.e., sentencing guidelines), gain-time revision, improved parole

and probation efficiency, youthful offender improvement, a new siting

process, and an emergency release mechanism. Lodg. Doc. 74.

° The petitioner has filed with the Court a compilation of public

records which have been designated as “Lodged Documents”. For

consistency, the respondent has utilized the same citation form as

designated by the petitioner.

10 Florida utilizes three types of gain-time as prison management

tools “to encourage satisfactory prisoner behavior, to provide incentive for

prisoners to participate in productive activities, and to reward prisoners

who perform outstanding services.” § 944.275(1), Fla. Stat. (1983 -

1995). The first type, basic gain-time, is a lump-sum, automatic award,

based upon length of sentence, which is deducted from an inmate’s

sentence immediately upon incarceration. § 944.275(4)(a), Fla. Stat.

Basic gain-time is non-discretionary and may only be forfeited for

specified misconduct. § 944.275(5), § 944.28, Fla. Stat. The second

type, incentive gain-time, is discretionary and may be awarded on a

monthly basis, as earned, for work and other productive activities, such

a8 participation in educational or vocational programs. § 944.275(4)(b),

mandatory gain-time awarded to inmates based upon length

of sentence tended to reward more serious offenders with

longer sentences and that the complexity and focus of the

monthly discretionary gain-time tended to undermine its

effectiveness as a prison management tool. Lodg. Doc. 72.

Simplifying the gain-time system was also expected to

enhance prison population predictability. Lodg. Doc. 73.

Finally, the COTF suggested creation of a stop-gap, early

release mechanism that would serve as a "safety valve” in

the event that the recommended reforms could not bring the

prison population under control.'' Lodg. Doc. 75, 114.

Over time, the Florida Legislature experimented with four

"safety valve" overcrowding mechanisms. Each

mechanism was crafted to facilitate expedient releases and

to minimize risk to public safety. As overcrowding

Fla. Stat. The last type of gain-time, meritorious gain-time, is also

discretionary, but is only awarded for extraordinary services, such as

saving a life or preventing an escape. § 944.275(4)(c), Fla. Stat.

'| The COTF recognized the overcrowding question as a diverse

problem influenced by state population growth, national economic

conditions and urban tendencies, which required development of a “long-

range plan prospectus.” Lodg. Doc. 74. The COTF was well aware of

the hazards of relying solely upon the recommended reforms, noting in its

report that “the concept of a Sentencing Commission is an untried

regulatory mechanism, and while we assume the process will work well,

it may not function as intended. * * * Therefore, some mechanism must

be set in place to make release judgements should inmate overcrowding

outstrip available prison capacity.” Lodg. Doc. 114.

\2 Petitioner suggests in his statement of the case that the

overcrowding credits, like gain-time under s. 944.275, were earned or

awarded for good behavior or productive activities during periods of

overcrowding. Brief of Petitioner at 3, n.5. This is not &.

Overcrowding credits were never awarded to promote good behavior. See

Eidson v. State, 667 So. 24 248 (Fla. 1st Dist Ct. App. 1995) (credit for

concerns subsided, the Florida Legislature systematicall

narrowed the pool of offenders eligible for early release.

The progression of these statutes was:

° Emergency Gain-Time - Section 944.598: Enacted in

1983. Administered by FDOC. Triggered if the prison

population reached 98% of lawful capacity up to 1987, and

at 99% of lawful capacity up to 1993. Contained no

offense-based exclusions. Authorized emergency release

based upon incremental reductions of emergency gain-time

during first 15 days; additional releases after 15 days

limited to inmate population with less than one year

remaining to serve. In effect between 1983 and 1993, but

never implemented."

. Administrative Gain-Time - Section 944.276: Enacted

in February 1987. Administered by FDOC. Triggered if

the prison population reached 98% of lawful capacity.

Contained a limited number of offense-based exclusions for

violent and habitual offenders. Authorized overcrowding

time served does not include provisional credits or administrative gain-time

which is used to alleviate prison overcrowding and is not related to

Lodg. Doc. 17, 19, 26. Because the FDOC did not make individualized

teehee an Gio SE to pull cxftty, thie coquivemecs served as

a k-reducing factor and nothing more. While the provision may have

inspired good behavior, it was incidental to its actual purpose.

aie ah sanengy Pla. Stat. (1983), Lodg. Doc. 26; 1983 Fla. Laws

. 83-131; . Laws ch. 93-406; see also ip v.

521 So. 2d 1097, 1098 (Pla. 1988). a

releases through limited incremental allocations of

administrative gain-time. First mechanism to implement

overcrowding releases. Repealed effective July 1, 1988.

Administrative gain-time allocations were subsequently

cancelled for all offenders in custody on June 17, 1993."*

® Provisional Credits - Section 944,277: Effective July

1, 1988, upon repeal of the administrative gain-time

statute. Triggered if the prison population reached 98% of

lawful capacity. Contained a more extensive list of

offense-based exclusions for violent and habitual offenders.

Authorized releases through limited incremental allocations

of provisional credits. Included a provision for 90 days of

post-release supervision to enhance public safety.

Amended in 1989 to exclude murder-related offenses and

a variety of offenses against law enforcement and judicial

officers. The 1989 exclusions were prospective, for

offenses committed on or after January 1, 1990. Amended

in 1992 to remove the prospectivity provision from the

1989 act and to cancel provisional credits previously

allocated to offenders with murder-related or law

enforcement offenses. Statute became inoperational in

January 1991 when Florida Parole Commission assumed

responsibility for overcrowding releases under s. 947.146.

Repealed effective June 17, 1993. Provisional credits

previously allocated were cancelled for all offenders in

custody on that date.’

‘4 See § 944.276, Fla. Stat. (1987), Lodg. Doc. 17; § 944.278, Fla.

Stat. (1993); 1993 Fla. Laws ch. 93-406.

'S See § 944.277, Fla. Stat. (Supp. 1988), Lodg. Doc. 19; §

944.277(1)(h) (i), Fla. Stat. (1989), Lodg. Doc. 21; 1989 Fla. Laws ch.

89-100: § 944.277(1)(h) (i), Fla. Stat. (Supp. 1992), Lodg. Doc. 23; 1992

Fla. Laws ch. 92-310; 1992 Op. Att'y Gen. Fla. 092-96 (December 29,

with an effective date of September 1, 1990. Administered

by the Florida Parole Commission. Contains offense-based

exclusions similar to provisional credits statute. Authorizes

release on fixed date or on advancing date, pursuant to

rules. Remains in place as current overcrowding control

mechanism. **

Florida 's prison population stabilized below lawful

Capacity in December 1994 and no releases for

overcrowding have been made since that time.

3. The Proceedings Below.

On April 14, 1986, petitioner Kenneth Lynce pleaded

nolo contendere to attempted first degree murder, armed

burglary of a dwelling, and possession of a firearm and

was sentenced to 22 years in the Florida prison system."

J.A. 3, 33, 53. These crimes were committed on October

27, 1985. Lodg. Doc. 144-145.

Upon receipt into state custody, the department applied

2,640 days of basic gain-time to petitioner’s sentence in

accordance with section 944.275(4)(a), Florida Statutes

1992), Lodg. Doc. 53-60; § 944.278, Fla. Stat. (1993), Lodg. Doc. 16:

1993 Pla. Laws ch. 93-406.

"© See § 947.146, Fla. Stat. (1989).

'” Petitioner also pleaded to possession and delivery of cocaine in

two additional cases and was sentenced to three and one-half years in each

case. J.A. 49, 50. However, because the petitioner's release date is

controlled by the 22-year term, these sentences are not the subject of this

proceeding.

(1985), and established petitioner's initial tentative release

date. J.A. 50. During the course of his incarceration,

petitioner earned an additional 958 days of incentive gain-

time under section 944.275(4)(b), Florida Statutes (1985),

for good behavior and productive activities, which further

reduced his tentative release date. /d.

Following the February 1987 enactment of the

administrative gain-time statute, s. 944.276, petitioner was

placed in a pool of eligibles for overcrowding release, and

was allocated 335 days of administrative gain-time because

of overcrowded conditions."* J.A. 50. In July 1988, the

administrative gain-time statute was replaced by another

overcrowding-control mechanism, provisional credits, s.

944.277. _ Petitioner initially remained eligible for

overcrowding release under the provisional credits statute.

Because overcrowding conditions persisted, the FDOC

allocated 1860 days of provisional credits to petitioner

between the inception of the statute in July 1988 and

January 1991, when the responsibility for overcrowding

releases was assumed by the Florida Parole Commission.

J.A. 50.

In 1989, the Florida Legislature amended the provisional

credits statute, s. 944.277, to exclude inmates convicted of

murder or attempted murder offenses.'’ The amendment

was applied prospectively to offenders with crimes

'§ Petitioner’s administrative gain-time was cancelled on June 17,

1993, pursuant to § 944.278; however, petitioner does not challenge its

cancellation in this case.

19 § 944.277(1)i), Fla. Stat. (1989).

committed on or after January 1, 1990.” However,

during the 1992 legislative session, section 944.277 was

again amended and the murder offense exclusion was

reenacted, effective July 6, 1992." The 1992 amendment

also eliminated the prospectivity provision for the murder

offense exclusion included in the 1989 version of the

Statute.

The FDOC, no longer responsible for overcrowding

releases, gave limited effect to the 1992 Act and failed to

cancel credits for the excluded categories contained in s.

944.277(1)(h) and (i) to remove these offenders from

overcrowding release eligibility. On October 1, 1992,

petitioner was discharged from custody prior to reaching

his tentative release date,” in spite of his ineligibility for

provisional overcrowding release. J.A. 50.

The FDOC’s failure to properly implement the

retroactivity provisions of the 1992 Aci was not detected

until after petitioner’s release. In December 1992, when

questions arose about the FDOC’s authority to grant

overcrowding releases to inmates convicted of murder

related offenses, the FDOC sought the opinion of the

See 1989 Fla. Laws ch. 89-100.

7! § 944.277(1)(i), Fla. Stat. (Supp. 1992); 1992 Fla. Laws ch. 92-

310.

22 id.

- A tentative release date is the projected date of release calculated

by subtracting all jail credit awarded by the sentencing court as well as all

basic gain-time awarded upon incarceration and all incentive gain-time

earned thereafter. § 944.275(2)(a), (3)(a), Fla. Stat.

Florida Attorney General. After a review of all of the

1992 provisions of s. 944.277, the Florida Attorney

General concluded that the offense-based exclusions

contained in s. 944.277(1)(h) and (i) applied retroactively

and further required that provisional credits previously

allocated for offenders excluded under these two provisions

be cancelled in order to give full effect to the statute's

ineligibility provisions.”

The FDOC immediately cancelled all provisional credits

allocated to offenders covered by the 1992 exclusions.

Because petitioner had been determined ineligible for early

release, the department sought a warrant for his return to

custody through the court that originally sentenced

petitioner.” J.A. 51. On May 17, 1993, the sentencing

court issued an Order for Execution of Sentence Imposed

and Retaking of Prisoner. /d. Petitioner was arrested

pursuant to this order and returned to custody on June 8,

4 1992 Op. Att'y Gen. Fla. 092-96 (December 29, 1992).

25 Because petitioner was in custody on July 6, 1992, when the

amendment became effective and required his removal from early release

eligibility, petitioner’s credits should have been cancelled on that date.

The department determined that the cancellation of the 1860 days of

provisional credits would reinstate inis tentative release date of November

4, 1997. J.A. 50. Petitioner erroneously states that the retroactive

cancellation of the provisional credits resulted in a new release date of

May 19, 1998. The 1998 release date reflected in the affidavit cited by

petitioner at page 52 of the Joint Appendix was the release date calculated

at the time the affidavit was prepared on November 29, 1994 in

anticipation of filing a response to the petition before the district court.

J.A. 34.

1993, to complete the remainder of his sentence. J.A.

51.

On August 18, 1994, petitioner filed a petition for writ of

habeas corpus in the United States District Court for the

Middle District of Florida. J.A. 2-29. Petitioner alleged

that the retroactive cancellation of the provisional credits

under the 1992 amendments to section 944.277(1) violated

the prohibition against ex post facto \aws under Article |,

Section 10, clause | of the United States Constitution. /d.

Petitioner argued that the revocation of the provisional

release credits previously allocated to him and his return to

Custody was an unconstitutional increase in the punishment

for a crime after its commission. J.A. 22-25.

The FDOC opposed the petition, citing a series of state

and federal cases which supported the department's position

that the overcrowding statutes were procedural in nature,

whose sole purpose was to alleviate the administrative

crisis of prison overcrowding. J.A. 44-46. On March 14,

1995, a United States Magistrate Judge recommended that

the petition be denied and dismissed with prejudice on the

ground that the 1992 amendments to section 944.277(1)

were adopted merely as a means to relieve prison

overcrowding, and, therefore, were not subject to the

prohibitions of the Ex Post Facto Clause. J.A. 53-60. The

* By law, the FDOC was entitled to return petitioner to custody.

See Carson v. State, 489 So. 24 1236 (Fla. 2d Dist. Ct. App. 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). Because petitioner's release was through error of the

FDOC, he was afforded credit for all time while out of custody. J.A. 52;

Sutton v. Strickland, 531 So. 24 1009 (Pla. ist Dist. Ct. App. 1988)

(when an inmate is released by mistake, his sentence continues to run in

the absence of some fault on his part).

magistrate judge specifically relied on Hock v. Singletary,

41 F.3d 1470 (11th Cir. 1995), cert. denied, _ U.S. _,

116 S.Ct 715 (1996). Jd. The United States District Court

for the Middle District of Florida adopted the magistrate’s

Report and Recommendation on May 10, 1995, and denied

the petition. J.A. 64. Petitioner applied for a Certificate

of Probable Cause on June 8, 1995, which was denied by

the district court on June 16, 1995. J.A. 65. The

petitioner reapplied for a Certificate of Probable Cause to

the United States Court of Appeals for the Eleventh

Circuit, which was also denied on October 16, 1995. J.A.

66. On January 10, 1996, petitioner filed with this Court

a petition for writ of certiorari. J.A. 67. On May 13,

1996, the Court granted certiorari. J.A. 67.

SUMMARY OF ARGUMENT

This case involves a Florida inmate (the petitioner) who

was initially considered eligible for an early release if

necessary to keep Florida’s prison population under a

federally mandated cap on capacity. Under a prison

overcrowding statute not in existence at the time he

committed his crime, the FDOC, using the incremental

allocation of credits, forecast a provisional date to release

the petitioner if overcrowding thresholds so required.

Before petitioner reached his actual release date and before

the earlier date forecast for release because of prison

overcrowding, the Florida Legislature enacted amendments

(the 1992 Act) to remove petitioner, and others like him,

from eligibility for release because of prison overcrowding,

based upon the violent nature of his crime.

Through a misinterpretation of the 1992 Act, the FDOC

failed to remove petitioner from eligibility and erroneously

and, without statutory authority, released petitioner on the

date forecast for prison overcrowding release. When the

misinterpretation of the statute came to light and was

corrected, petitioner was reimprisoned to serve the balance

of his remaining lawful sentence.

Florida’s overcrowding statutes were enacted solely as

administrative procedures to control prison overcrowding.

The purpose of the overcrowding statutes was two-fold: 1)

controlling prison population levels in times of prison

overcrowding and 2) minimizing the risk to public safety.

The non-punitive purpose of the statutes and the public

safety interest at stake required their liberal construction,

and their retroactive application. While generally statutes

are presumed to apply only prospectively, Florida’s

overcrowding statutes implicitly operated retroactively in

order to effectuate clear legislative purpose.

As stop-gap mechanisms to control prison overcrowding,

these statutes were not contemplated to work as a

component of the sentencing system or to be incorporated

as part of the traditional in-prison gain-time system by

which an inmate could reduce his sentence for good

behavior. Under Florida law, a prisoner’s actual sentence

is determined by the interaction of the original sentence

imposed under the sentencing guidelines reduced by

statutorily authorized gain-time awarded for good behavior.

Overcrowding early release credits were not included as

part of the statutorily authorized gain-time deductions

which are the typical determinants of actual length of

incarceration after imposition of sentence because the need

for these credits was generated on factors outside of the

sentencing scheme which contribute to overcrowding and

which are irrelevant to determining appropriate punishment.

At the time that petitioner committed his crime in 1985,

the provisional release statute under which he eventually

was allocated early release credits had not been enacted.

No overcrowding releases had been made under the

predecessor statute in effect when petitioner committed his

crimes. While overcrowding persisted during this time, it

was addressed primarily by increasing prison capacity.

Because of the highly speculative and unpredictable nature

of overcrowding, petitioner could not have reasonably

expected that overcrowding needs would actually shorten

his term of incarceration or provide a “formula” for

calculating a new sentencing range on the day he was

sentenced.

Allocation of credits under the overcrowding statutes was

merely part of a procedure to forecast a possible release

date if necessary to continue to meet overcrowding needs.

Petitioner accrued no absolute right to the forecasted credits

and their withdrawal amounted to no more than removal of

a "hope" of possible release.

The Ex Post Facto Clause protects against retroactive

legislative changes that "inflict a greater punishment, than

the law annexed to the crime, when committed." Calder

v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798). Not every

disadvantage or lost opportunity to take advantage of the

provisions for early release will violate this constitutional

prohibition. Cal. Dept. of Corrections v. Morales, 115 S.

Ct. 1597, 1062 n.3 (1995). Only those legislative changes

which produce more than a “speculative, attenuated” risk

of an increase in punishment will violate the Constitution.

Id. When petitioner committed his crime, the possibility of

a reduced term of confinement because of prison

overcrowding was so remote that it amounted to no more

than a "glimmer of hope". Since release or a reduced term

of confinement because of overcrowding could not

reasonably be considered a part of petitioner’s punishment

when he committed his crimes, the deprivation of the

opportunity for overcrowding release cannot have in any

real way increased petitioner’s punishment.

Petitioner’s release from custody occurred as a result of

the FDOC’s misinterpretation the 1992 Act which removed

petitioner’s eligibility for overcrowding release. The Ex

Post Facto Clause does not establish a right to the

continued misapplication of law. Petitioner was not

reimprisoned to serve an additional five years but only to

serve the remainder of his lawful sentence as originally

imposed.

ARGUMENT

I. THE 1992 AMENDMENTS TO FLORIDA

STATUTES SECTION 944.277 WHICH

RETROACTIVELY REMOVED CERTAIN

CLASSES OF VIOLENT OFFENDERS FROM

ELIGIBILITY FOR RELEASE TO ALLEVIATE

PRISON OVERCROWDING DID NOT

INCREASE PETITIONER’S PUNISHMENT

AND, THEREFORE, DID NOT VIOLATE THE

EX POST FACTO CLAUSE.

Article I, §10, of the Constitution prohibits states from

enacting ex post facto laws. Under the Ex Post Facto

Clause, a state may not apply retroactively any law that

"inflicts a greater punishment, than the law annexed to the

crime, when committed.” Calder v. Bull, 3 U.S. (3 Dall.)

386, 390 (1798). The question of whether a particular

legislative change produces consequences sufficient to

invoke the prohibitions of the Ex Post Facto Clause is a

matter of "degree". Beazell v. Ohio, 269 U.S. 167 (1925).

However, not every legislative change that "disadvantages"

an offender or affects a prisoner’s "opportunity to take

advantage of the provisions for early release" violates the

Constitution. Cal. Dept. of Corrections v. Morales, 115 S.

Ct. 1597, 1602 n.3 (1995). Rather, a law must produce "a

sufficient risk of increasing the measure of punishment

attached to the covered crimes." Morales, 115 S. Ct. at

1603. While no exact formula for determining when a

particular legislative change produces a sufficient effect on

punishment to fall within the prohibitions of the Ex Post

Facto Clause, the Court has made clear that the risk of

affecting a prisoner’s actual term of confinement must be

more than “speculative and attenuated". /d.

A. Provisional Credits And Other Forms of

Overcrowding Gain-Time Are Neither An

Integral Part of the Punishment Attached to

Petitioner’s Crimes Nor A Critical Determinant

of the Length of Petitioner’s Incarceration

Because Their Are Part of Administrative

Procedures Designed To Alleviate Prison

Overcrowding, A Phenomenon Created By

Factors Unrelated to a Prisoner’s Punishment.

Any ex post facto inquiry necessarily must begin by

examining the parameters of the punishment prescribed by

law at the time the crime was committed. This Court has

established that a law which provides the opportunity for

reductions in sentence may fall within the scope of the Ex

Post Facto Clause if it is one determinant of a prison term,

which, if changed, enhances the effective sentence.

Weaver v. Graham, 450 U.S. 24, 32 (1981). Petitioner

maintains that provisional release credits, like other forms

of gain-time which serve to reduce a sentence, is a critical

determinant of the length of his incarceration and,

therefore, are “part and parcel” of his punishment.

ee ee a ae,

However, petitioner’s analysis of the role of overcrowding

credits in the sentencing process suffers from the same fatal

flaws as those presented by the petitioners in Griffin v.

Singletary, 638 So. 2d 500 (Fla. 1994), Dugger v. Rodrick,

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

Singletary, 502 U.S. 1037 (1992), and Blankenship v.

Dugger, 521 So. 2d 1097 (Fla. 1988).

In Blankenship, Rodrick, and Griffin, Florida’s highest

court considered various ex post facto and due process

challenges to changes in Florida’s overcrowding control

statutes.” In each case, the Florida Supreme Court

compared the traditional forms of gain-time** awarded for

good behavior with the various overcrowding credits used

by the state to control prison overcrowding. The court

drew significant distinctions between the statutes’ purposes,

nature, operation, and relationship to the sentence imposed.

The supreme court noted that gain-time for good behavior,

particularly basic gain-time, interacted with the sentence in

a quantifiable way and, therefore, became an actual

7 In Blankenship, the petitioner, who met the eligibility

requirements for overcrowding release under the emergency gain-time

statute, § 944.598, challenged the removal of that eligibility upon the 1987

enactment of the administrative gain-time statute, § 944.276. Blankenship,

521 So. 2d at 1097. In Rodrick, the petitioner challenged the withdrawal

of his eligibility for overcrowding release upon enactment of the

provisional credits statute, § 944.277. Rodrick had been eligible for early

release under two predecessor overcrowding statutes (emergency gain-time

and administrative gain-time). Rodrick, 584 So. 2d at3. In Griffin, the

petitioner challenged the retroactive cancellation of provisional credits

under the 1992 amendments to § 944.277 and the later cancellation of

administrative gain-time under § 944.278, effective June 17, 1993.

Griffin, 638 So. 2d at S500.

28 These forms of gain-time are those granted under § 944.275, Fla.

Stat.: basic, incentive and meritorious.

determinant of the expected term of incarceration.”

These forms of gain-time were used to encourage good in-

prison behavior, foster rehabilitation, and encourage work

and other productive activities. In stark contrast, the court

found that the enabling statutes for overcrowding credits

articulated administrative procedures which served the

singular purpose of controlling prison overcrowding.

Rodrick, 584 So. 2d at 3-4; Blankenship, 521 So. 2d at

1089. Their issuance was highly speculative and entirely

predicated on many outside economic and sociological

variables which typically contribute to prison

overcrowding. The statutes could not be used by prison

officials to promote good behavior or work activities. Of

particular importance, the court found that overcrowding

credits bore no relationship to the original penalty assigned

the crime or the actual penalty calculated under the

sentencing guidelines.” Griffin, 638 So. 2d at 500:

9 Basic gain-time is applied as a lump-sum award based upon length

of sentence immediately upon incarceration. See § 944.275(4)(a), Fla.

Stat.; Rodrick, 584 So. 2d at 4. Its mandatory application at the

commencement of a sentence assures an offender a shorter definitive term

of incarceration than imposed by the judge at the time of sentencing. For

this reason, it has been considered a significant "factor entering into both

the defendant’s decision to plea bargain and the judge’s calculation of the

sentence to be imposed." Rodrick, 584 So. 2d at 4, citing Weaver v.

Graham, 450 U. S. at 32, 1010 S. Ct. at 966. Incentive gain-time, while

less predictable because of its discretionary and contingent nature, could

be hypothetically estimated based upon length of sentence imposed.

Rodrick, 584 So. 2d at 4.

= Overcrowding concerns and credits traditionally have been treated

as falling outside of the sentencing process in Florida. The conjectural

nature of overcrowding and overcrowding releases prevents these factors

from being a reasonable basis for a plea. Griffin, 638 So. 2d at 501

Rodrick, 584 So. 2d at 2; Blankenship, 521 So. 2d at 1097.

Because of the peculiar and highly speculative nature of

overcrowding credits and their dedicated purpose, the

Florida Supreme Court concluded that the statutes were not

subject to ex post facto restrictions because they did not

make "more burdensome the punishment for a crime, after

its commission.” Rodrick, 584 So. 2d at 4, citing Beazell

v. Ohio, 269 U.S. 167, 169, 46 S. Ct. 68, 70 L. Ed. 216

(1925). The Florida Supreme Court's analysis was later

adopted by the federal courts. See Hock v. Singletary, 41

F. 3d 1470 (11th Cir. 1995); Herring v. Singletary, 879

F.Supp. 1130 (N.D. Fla. 1985); see also J.A. 44-45, n.5,

for a list of unpublished cases.

Like the petitioners in Griffin and Rodrick, petitioner

attempts to equate overcrowding credits, or early release

credits, with gain-time awarded for good behavior, which

has been considered a determinant part of the penalty

attached to petitioner’s crime. Brief of Petitioner at 19,

n.23. Petitioner cites several sources in an effort to

(provisional credits are inherently arbitrary and unpredictable, based solely

on the happenstance of prison overcrowding, and cannot possibly be a

factor at sentencing or in deciding to enter a plea). Such considerations

are not a permissible basis for upward or downward departures from

permitted ranges under the sentencing guidelines. See State v. Moore, 630

So. 2d 1235 (Fla. 2 Dist. Ct. App. 1994). And overcrowding credits,

unlike gain-time provided under § 944.275, may not be credited as as time

served against a new sentence imposed upon revocation of probation or

community control. See Tripp v. State, 622 So. 2d 941 (Pla. 1993);

Eidson v. State, 667 So. 24 248 (Pla. | Dist. Ct. App. 1995) (credit for

tume served does not include provisional credits or administrative gain-tume

which is used to alleviate prison overcrowding and is not related to

satisfactory behavior while in prison); Gant v. State, 642 So. 2d 84 (Fla.

2 Dist. Ct. App. 1994); Webb v. State, 630 So. 2d 674 (Pla. 4 Dist. Ct.

App. 1994).

demonstrate that overcrowding credits, like the traditional

forms of gain-time, were considered an integral component

of Florida’s sentencing guidelines system. However, most

of these sources refer to gain-time in a general fashion and

do not define what types may be included in the term.

Others are taken out of context.

For example, to support his position that all types of

gain-time, including overcrowding gain-time credits, were

intended to function as a substitute for parole, petitioner

points to the Senate Staff Analysis and Economic Impact

Statement for SB 644 which discusses fifteen major policy

changes in the legislation drafted by the Corrections

Overcrowding Task Force (COTF). See Brief of Petitioner

at 20, n.23. Petitioner focuses on a statement in paragraph

4, which provides “[p]Jersons convicted on or after the

effective date of the act shall no longer be eligible for

parole and shall have their release governed by expiration,

gain-time, or clemency." (emphasis added) Lodg. Doc.

39. The emergency overcrowding release mechanism,

which eventually became known as emergency gain-time,

is discussed separately in paragraph 3. The discussion of

Florida’s law on gain-time is discussed in paragraph 7.

From this singular reference to "gain-time” in paragraph 4,

petitioner concludes that overcrowding release credits were

incorporated into the sentencing guidelines scheme. To the

contrary and more significantly, the COTF Report which

actually gave rise to the legislation being analyzed clearly

distinguishes between the role of the emergency

overcrowding release mechanism, as an interim, stop-gap

measure, until the new sentencing system could take effect,

and the role of "gain-time” as the legislatively authorized

means by which sentences may be reduced. (Compare

discussion at page v, 70 of the Report [Lodg. Doc. 75,

114] with discussion at pages iii, iv [Lodg. Doc. 72-73}).

The discussion in the COTF Report clearly reveals that the

emergency release mechanism was not intended to operate

in conjunction with the sentencing scheme, but only if the

new sentencing guidelines system did not eliminate the

overcrowding problem as planned. See, supra at 6, n.11.

Similarly, petitioner cites to the Senate Staff Analysis and

Economic Impact Statement for SB 3A from February 4,

1987, which discusses the impact of implementing Florida’s

second generation overcrowding control mechanism,

administrative gain-time. The summary first describes the

three traditional forms of gain-time -- basic, incentive,

meritorious -- which traditionally have served as the

exclusive methods by which a term of imprisonment could

be reduced by an inmate for good behavior. The

emergency overcrowding release statute is mentioned

separately, in a different context. Lodg. Doc. 46. As with

the emergency gain-time provisions, the staff analyst

describes the administrative gain-time overcrowding

mechanism as a temporary, stop-gap measure to address

intake surges experienced by the FDOC as the result of

1986 directives of the Florida Supreme Court which

accelerated the disposition of criminal cases. Lodg. Doc.

47. Nothing in the report supports the conclusion that the

terms “early release credits” and “gain-time” may be used

interchangeably or that the term “gain-time can be read in

all contexts as including overcrowding credits.

Petitioner further points to a passage in the sentencing

guidelines promulgated by the Florida Supreme Court in

1985 under the Rules of Criminal Procedure:

[t]he sentence imposed by the sentencing judge

should reflect the length of time to be served,

shortened 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. Again, from another

singular reference to "gain-time”, petitioner concludes that

"[s}tate law plainly provides that early release gain-time

was an integral part of the punishment imposed for

petitioner's offense." Petition of Respondent at 21. Yet

there is no definition of what types of "gain-time” may be

encompassed by this reference or the significance of the

passage itself.*'

In spite of clear indications to the contrary, Petitioner

continues to insist that Florida has including overcrowding

credits as part of the traditional gain-time system as a

functional part of its contemporary sentencing system. The

COTF Report makes abundantly clear that the

overcrowding mechanisms were neither a replacement for

parole under the previous indeterminate sentencing scheme

nor a part of the traditional gain-time system in place for

over 100 years. The Florida Supreme Court has repeatedly

recognized that early release credits dedicated to controlling

prison overcrowding play no role in Florida’s sentencing

scheme. Blankenship, Rodrick, Griffin, supra. Legislative

| An equally plausible explanation for this reference can be found

in Florida Statutes. There is only one enactment entitled “Gain-time” and

that is found in § 944.275. Section 944.275 is the legislative authorization

for basic, incentive and meritorious gain-time -- the three types of gain-

time which the COTF clearly addressed in its report as being the

traditional reductions of sentence for good behavior. In contrast, all of the

overcrowding “early release credits” were enacted in separate and distinct

statutory provisions. Only two of the overcrowding statutes included any

reference to “gain-time” (emergency gain-time and administrative gain-

tume). Petitioner does not explain how “provisional credits” are

encompassed in this statutory reference to “gain-time”.

history dictates the same result.”

Petitioner’s contention that Florida intended to include

overcrowding credits as an integral part of its contemporary

sentencing system is illogical. To include overcrowding

credits within the context of the determinant sentences

contemplated by the sentencing guidelines undermines

uniformity of sentencing, one of Florida’s fundamental

purposes in enacting the guidelines system. Clearly Florida

did not intend to put in place a system of punishment for

crimes that provide less punishment to those who offend

during times of prison overcrowding than for those whose

crimes occur during times of sufficient prison capacity.

Petitioner seeks constitutional protection for an illogical and

inequitable notion of punishment.

Petitioner’s analysis of the role of overcrowding credits

in Florida’s sentencing process fails to take into account

significant state judicial precedent and legislative history

which distinguish overcrowding credits from the traditional

types of gain-time and clearly define the role of the

overcrowding statutes in the sentencing process. Petitioner

obscures these important distinctions in an effort to

demonstrate a nexus between overcrowding credits and the

original sentence imposed. In order to invoke the

protections of the Ex Post Facto Clause, petitioner must

demonstrate that overcrowding credits are a substantial

= Overcrowding credits evolved exclusively as “stop-gap” release

mechanisms that would serve as a “safety valve” in the event that the

sentencing reforms enacted under the Correctional Reform Act of 1983

could not bring the prison population under control. Lodg. Doc. 75, 114.

The “gain-time” reductions to sentences imposed under the guidelines were

specifically addressed by the COTF in drafting the reform legislation and

are clearly limited to the three types of gain-time referenced in § 944.275,

Fla. Stat. Lodg. Doc. 72-74.

consideration in the sentencing process and, therefore, part

of the penalty assigned to his crimes. In the absence of

such a nexus, petitioner’s ex post facto claim must fail.

The Ex Post Facto Clause “forbids the imposition of

punishment more severe than the punishment assigned by

law when the act to be punished occurred." Weaver, 450

U.S. at 31. The constitutional prohibition protects against

enhanced punishment but does not assure a right to less

punishment. /d. Overcrowding credits were not enacted

as part of the sentencing scheme which gave rise to

petitioner's punishment. Their creation was to address the

highly conjectural and speculative phenomenon of prison

overcrowding. The petitioner seeks to invoke a

constitutional protection for less punishment. The potential

to receive a very early release from incarceration based on

the unpredictable phenonmenon of prison overcrowding is

precisely the "speculative and attenuated" risk this Court

has found insufficient to invoke the constitutional

prohibitions of the Ex Post Facto Clause. Morales, 115 S.

Ct. at 1603.

B. At the Time Petitioner Committed His Crimes,

Petitioner Could Not Have Reasonably Expected

as He Would Benefit From A Non-Existent

ute.

At the time petitioner committed his crimes in October

1985, the parameters of his punishment were governed by

§ 775.082, Fla. Stat. (1985), and the sentencing guidelines

under Fla. R. Cr. P. 3.701 and 3.988, reduced only by

gain-time as provided for in § 944.275, Fla. Stat. (1985).

Petitioner entered a plea of nolo contendere and six months

later received a sentence of 22 years in prison for the

primary offense of attempted murder. Upon transfer to the

FDOC, petitioner immediately received his mandatory

basic gain-time award of 2640 days, roughly reducing his

sentence from 22 years to 15 years. § 944.275(4)(a), Fla.

Stat. (1985); J.A. 50. Petitioner also became immediately

eligible to accrue monthly incentive gain-time; however,

because this type of gain-time is purely discretionary,

contingent on the wishes of correctional authorities and

availability of work and program assignments, and, of

course, the special behavior of the inmate, the actual

reduction in sentence is not immediately quantifiable.”

§ 944.275(4)(b), Fla. Stat. (1985). Thus, petitioner's

punishment on the date he committed his crimes and on the

date he was sentenced was in real terms, 15 years, with the

possibility that he could achieve an earlier release through

monthly gain-time awards.

In April 1986, at the time of petitioner entered his nolo

plea, the only overcrowding control mechanism in effect

was the emergency gain-time statute. § 944.598, Fla. Stat.

(1985). Although enacted in 1983, prison population levels

never reached the threshold capacity to trigger its

operation. See Blankenship v. Dugger, 521 So. 2d 1097,

1098 (Fla. 1988). Thus, petitioner had no tangible

evidence that he would receive benefit of this statute when

he committed his crimes or at the time he pleaded nolo

contendere to his offense.

Moreover, even if a state of emergency was declared

under § 944.598, the maximum benefit petitioner

immediately could have realized was an award of 30 days

33 Of course, a hypothetical, "best of all possible worlds” estimate

of the reduced sentence can be made based upon maximum awards

available by law; however, there is nothing to assure that any inmate will

actually achieve this hypothetical release date.

of emergency gain-time. § 944.598(2), Fla. Stat. (1985);

Lodg. Doc. 27. If the state of emergency persisted after

15 days, releases were limited to those offenders who were

within a year or less of their actual release dates. §

944.598(3)-(4), Fla. Stat. (1985), Lodg. Doc. 27. Because

of petitioner’s lengthy term, the likelihood that the

emergency gain-time statute would have any impact upon

petitioner’s release from incarceration was most assuredly

remote.

Although the advent of the provisional credits statute was

over two years away, petitioner nonetheless maintains that

he had a reasonable expectation of receiving these specific

overcrowding credits.“ It is doubtful that petitioner could

have foreseen the future. When petitioner committed his

crimes in October 1985, Florida had been grappling with

- Overcrowding was not a new phenomenon in Florida. The

FDOC had been coping with overcrowding since the early 1970s. See

Costello v. Wainwright, supra. During the years immediately preceding

petitioner's crime, Florida had appropriated funds to construct new prison

beds to address the dilemma. See Corrections Overcrowding Task Force,

Final Report and Recommendations (1983), Lodg. Doc. 76. Petitioner

notes that less than a month before his sentencing, the number of inmates

in Florida’s state prison system exceeded 98 percent of capacity, the

statutory trigger for authorization of provisional release credits, and that

prison overcrowding was not soon to go away. Brief of Petitioner at 28,

n.34. The fact that Florida’s prison capacity reached 98 percent bore no

Significance at that time. Provisional credits were an unknown

commodity, not due for creation for two more years. The triggering

mechanism for the emergency release statute remained at 99 percent of

capacity. Thus, the 99 percent threshold, and not the 98 percent threshold

is the only overcrowding release factor of significance at the time

petitioner was sentenced. Petitioner places great reliance on continued

overcrowding concerns; however, there was nothing to assure him that

Florida would resort to the emergency release mechanism rather than to

construct additional prison beds to stave off the latest wave of new

admissions, as had been done in the past.

prison overcrowding for over a decade. Yet, not one

emergency release had occurred. The likelihood that

petitioner would receive benefit of emergency release was

remote; and the prospect that he would receive the windfall

benefit of a not-yet-existent statute was more remote.

Against this backdrop, Petitioner’s contention that

continued overcrowding made the award of these credits a

certainty stretches credulity. The emergency gain-time

statute had never been implemented and no prisoners had

been released. Unless petitioner was able to predict the

future, petitioner had no legitimate expectation at the time

of his crime or his plea that he would receive any sentence

reduction as a result of prison overcrowding under the

existing statute, let alone a reduction of sentence by credits

from a not-yet-existent statute. At most, petitioner

possessed a mere hope of release because of prison

overcrowding -- not a reality. See Hock v. Singletary, 41

F. 3d 1470 (11th Cir. 1995), cert. denied, 116 S. Ct. 715

(1996).°*> The future allocation of credits under the statute

5 Petitioner points out that the Eleventh Circuit reached opposite

conclusions in its decisions in Hock v. Singletary, 41 F.3d 1470 (11th Cir.

1995), cert. denied, 116 S. Ct. 715 (1996) and Raske v. Martinez, 876

F.2d 1496 (11th Cir. 1989), cert. denied, 493 U.S. 993 (1989). Petitioner

finds these opposite opinions irreconcilable: “If the prospect of possible

acquisition of early release credits is not too speculative to undergird

reasonable expectations of early release, neither is the award of provisional

credits due to prison overcrowding.” However, this Court has held that

whether a particular legislative change produces consequences sufficient

to invoke the prohibitions of the Ex Post Facto Clause is a matter of

"degree". Morales, 115 S. Ct. at 1603, citing Beazell v. Ohio, 269 U.S.

at 171. And, not every legislative change that “disadvantages” an offender

or affects a prisoner’s “opportunity to take advantage of the provisions for

early release” violates the Constitution. Morales, 115 S. Ct. at 1602 n.3

(1995). It was apparently obvious to the Eleventh Circuit the degree to

which changes to the two prison management statutes affect a prisoner's

enacted in 1987 and their subsequent cancellation under the

1992 were too attenuated to invoke the protections of the

Ex Post Facto Clause. Morales, 115 S. Ct. at 1603 (the

amendment creates only the most speculative and attenuated

possibility of producing the prohibited effect of increasing

the measure of punishment for covered crimes, and such

conjectural effects are insufficient under any threshold we

might establish under the Ex Post Facto Clause).

II. UNDER THE LINDSEY-WEAVER-MILLER

RULE, FLORIDA’S OVERCROWDING

STATUTES DO NOT AFFECT A PRISONER’S

PUNISHMENT WITHIN THE MEANING OF

THE EX POST FACTO CLAUSE.

In Collins v. Youngblood, 497 U.S. 37 (1990), the

Court heralded the return of the Ex Post Facto Clause to its

original intent and meaning. Continuing its refinement in

Morales, the Court emphasized that it is the "increase in

the penalty by which a crime is punishable” which triggers

the ex post facto prohibitions not just any potential

disadvantage occasioned by a prisoner or change that may

alter the expected term of confinement. Morales, 115

S.Ct. at 1602, n.3; Collins, 497 U.S. at 43 (1990). The

Court noted that several of its prior opinions suggested that

enhancements to the measure of criminal punishment fell

within the ex post facto prohibitions because they operated

to the “disadvantage” of covered offenders. Morales, 115

S. Ct. at 1602, n.3. However, the Court acknowledged

punishment is significantly different.

that the proper focus of the ex post facto inquiry was not

whether a legislative change produces some ambiguous sort

of “disadvantage” or whether the change affects a

prisoner’s opportunity to take advantage of provisions for

early release but whether the change alters the definition of

criminal conduct or increases the penalty by which a crime

is punishable. Jd. The Court pointed out that the

"disadvantage" language utilized in the Lindsey-Weaver-

Miller trilogy was unnecessary to the results in those cases,

because, in each case, the original criminal penalty had

been enhanced.”

The most closely analogous case in the Lindsey-Weaver-

Miller trilogy is Weaver. The Court’s refinement of

36 In Lindsey v. Washington, 301 U.S. 397 (1937), the petitioners

had been convicted of grand larceny, and the prescribed penalty for grand

larceny was imprisonment for an indeterminate sentence not to exceed

fifteen years. After commission of the crimes, but before sentencing,

Washington amended the law to require offenders convicted of these

crimes to be sentenced to the maximum 15 years in prison, with an earlier

release obtainable only through parole. The amendment eliminated any

sentence less than 15 years and, thus, the standard of punishment for the

Lindseys at sentencing was increased from a range of years to the

maximum of 15 years.

In Miller v. Florida, 482 U.S. 423 (1987), the Court reviewed a

challenge to a change in Florida’s sentencing guidelines that increased a

presumptive sentencing range for sexual offenders from 3% two 4% years

to 5% to 7 years through an alteration in the formula for establishing the

presumptive sentencing range by increasing the “offense points” assigned

to those crimes. Because the penalty was increased to require imposition

of a sentence between 5'4 to 7 years, a range which exceeded the original

maximum statutory penalty of 4% years in place on the date Miller

committed his crime, the Court found the statutory change violated the Ex

Post Facto Clause.

The decision in Weaver is discussed, infra.

Weaver provides the litmus test for determining when a

State statute which provides for a prison management

mechanism runs afoul of the Ex Post Facto Clause. In

Weaver, the Court considered the effect of changes in

Florida’s gain-time statutes which retroactively reduced the

amount of an automatic, mandatory reduction in length of

sentence for prisoners committing crimes before the

effective date of the new law. The original statutory

provision reviewed required the FDOC to apply a lump-

sum award of gain-time based upon length of term imposed

when a prisoner was first received into custody. This gain-

time was retained by the prisoner so long as he complied

with prison rules and state law. Thus, on the date of

sentencing (and, more importantly, on the date the crime

was committed), an offender’s actual prison penalty -that

is, his punishment - was calculated as the actual sentence

less the award of mandatory gain-time.*’ Because the

reduction in the amount of mandatory gain-time raised the

level of the lower end of the range of prison terms and

made these lower ranges no longer attainable, the Court

concluded the "quantum of punishment" had been increased

in violation of the Ex Post Facto Clause.

Morales teaches that the Ex Post Facto Clause is not

implicated simply because a state statute retroactively

"disadvantages" an offender but rather the law must

"produce a sufficient risk of increasing the measure of

punishment attached to the covered crimes." Morales, 115

S.Ct. at 1603. Under Morales, the statute must affect the

7 In petitioner’s case, his 22-year sentence became roughly a 15-

year sentence by application of automatic (basic) gain-time. Unlike the

petitioner in Weaver, petitioner can make no tangible prediction of his

penalty based upon overcrowding credits as they are contingent on many

factors outside the sentencing process and prison operations.

original punishment and it must produce a sufficient risk of

increasing the original punishment.

Petitioner’s entire focus is on the potential length of

incarceration. “Incarceration is punishment, and longer

incarceration a greater punishment" is not the test. At the

time petitioner committed his crime, he could have no

more than a "glimmer of hope” that overcrowding concerns

might afford him the opportunity for very early release

from his actual punishment. Unlike the petitioner in

Weaver, petitioner cannot show that the punishment for his

crimes on the date he committed them was something less

than the 22 years to which he was actually sentenced, or

that 22 years would be affected in the least by

overcrowding. Petitioner may not, in retrospect, conclude,

that provisional credits allocated at a time well after his

crime and imposition of sentence to forecast a provisional

release date in anticipation of overcrowding needs increased

his original punishment when Florida withdrew his

provisionally calculated release in the absence of a need to

release him to satisfy overcrowding concerns. The 1860

days of provisional credits allocated to petitioner were no

more than components of a projected release - a forecast -

made by the FDOC in anticipation of the need to control

prison overcrowding. When Florida petitioner's release

was no longer warranted in order to satisfy overcrowding

concerns, all petitioner suffered was a "lost opportunity”.

The effect of overcrowding was not tangible, predictable,

or calculable on the day petitioner committed his crime.

Since overcrowding credits could play no role in his

sentence on the day he committed his crime, it could play

no role in later increasing his punishment.

Petitioner’s “expectation” of unconditional, mandatory

release through provisional credits, in the absence of

continued overcrowding and the state’s need for additional

releases, was not legitimate or shared by the state.

Although petitioner Lynce may be disappointed he failed to

receive the windfall of early release due to prison

overcrowding, he has not been harmed by the state’s

requirement that he serve his sentence as originally

imposed. The very nature of prison overcrowding gave

petitioner fair warning that his "glimmer of hope” might

not materialize into an earlier release. The protections of

the Ex Post Facto Clause have not been invoked in this

case.

lil. THE EX POST FACTO CLAUSE DOES NOT

PROTECT A RIGHT TO THE CONTINUED

MISAPPLICATION OF LAW. THEREFORE,

BECAUSE PETITIONER WAS UNLAWFULLY

AND ERRONEOUSLY DISCHARGED FROM

CUSTODY AFTER HE WAS DEEMED

INELIGIBLE FOR EARLY RELEASE UNDER

THE 1992 ACT, THE FDOC WAS ENTITLED

TO RETURN THE PETITIONER TO PRISON

TO COMPLETE THE REMAINDER OF THE

SENTENCE IMPOSED

A. The Exclusionary Provisions of Florida’s

Overcrowding Statutes, As Part of An

Administrative Mechanism To Control Prison

Overcrowding, Were Properly Construed As

Retroactive Statutes.

Florida’s overcrowding statutes are administrative

procedures enacted to regulate prison population levels

when new admissions exceed lawful capacity. See Griffin,

Rodrick, Blankenship, supra. \n implementing these

statutes, the Florida Legislature crafted the statutes to serve

a two-fold purpose: |) controlling prison population levels

in times of prison overcrowding and 2) minimizing the risk

to public safety. The non-punitive purpose of the statutes

and the public safety interest at stake required their liberal

construction, and their retroactive application.

To give full effect to the non-punitive legislative purpose,

the FDOC applied the overcrowding statutes, including the

provisional credits statute, to the prison population without

regard to date of offense. The legislative purpose was

clear on the dates of enactment of the various statutes that

the exclusions applied in the interest of public safety at the

onset of overcrowding and not to some future prison

population developed after overcrowding concerns abated.

This was not only a reasonable interpretation of how the

statutes were to operate but an inescapable one. The

retroactive nature of the overcrowding statutes was

validated on numerous occasions by Florida's highest court.

See Griffin, Rodrick, Blankenship, supra.

While generally statutes are presumed to apply only

prospectively, see Landgraf v. USI Film Prods., 114 S. Ct.

1483, 1496 (1994), in certain instances, statutes, by their

very nature and purpose, may implicitly carry retroactive

effect in order to effectuate clear legislative purpose. See

Bowen v. Georgetown University Hospital, 488 U.S. 204,

223 (1988) (a particular statute may in some circumstances

implicitly authorize retroactive application). Florida's

overcrowding statutes necessarily require implicit

retroactive application in order to give full and appropriate

force and effect to their legislative purposes.

In light of the retroactive nature of the overcrowding

statutes, the Florida Legislature was acutely aware of the

need to include explicit language in the statutes only if it

intended to achieve prospective application. For this

reason, in 1989, when the exclusion for murder-related

offenses was first enacted, the legislature determined the

provision should apply only to new offenders and included

a specific prospective effective date.“ Thus, the

Subsequent reenactment in 1992 of these same provisions,

omitting the prospective effective date for sections

944.277(1)(h) and (i), evidenced clear legislative intent that

these two exclusions should now apply to all offenders in

those categories, including those who were previously

eligible.

The 1992 Act followed on the heels of the transfer of

responsibility for overcrowding control from the FDOC to

the Florida Parole Commission.” Offenders like

petitioner were ineligible for overcrowding release under

the control release statute administered by the commission.

See § 947.146(4)(i), Fla. Stat. (Supp. 1990). Further

legislative action was necessary to completely remove these

offenders from overcrowding release eligibility. The 1992

Act embodied that legislative action.

** See 1989 Fla. Laws ch. 89-100: § 944.277, Fla. Stat. (1989), n.2.

*® In 1989, the Florida Legislature enacted legislation to transfer the

responsibility for overcrowding control from the FDOC to the Florida

Parole Commission. See Ch. 89-526, Laws of Fla., codified as section

947.146, Florida Statutes (1989). Effective September 1, 1990, this

transfer of authority allowed an individualized assessment of the risk of

release for the inmates deemed statutorily eligible for overcrowding

release. Like its predecessor statutes, the control release statute contained

an extensive list of offense exclusions. Inmates convicted of murder-

related offenses were statutorily ineligible for control release. §

947.146(4)(i), Fla. Stat. (Supp. 1990). No provisional credits were

allocated after the Florida Parole Commission commenced control releases

in January 1991. See 1992 Op. Att'y Gen. Fla. 092-96 (December 29,

1992).

The interpretation accorded the 1992 Act by the Florida

Attorney General was not only foreseeable, it was the only

interpretation which could give effect to the legislative

purpose in reenacting the provisions.

B. The Corrected Interpretation of the 1992 Act By

the Florida Attorney General and the Subsequent

Judicial Validation of That Interpretation Did

Not Unconstitutionally Extend The Retroactive

Reach of the Statute.

The amicus Florida Public Defender Association suggests

that the reinterpretation of the 1992 Act by the Florida

Attorney General and the later ratification of that

interpretation by the Supreme Court of Florida in Griffin,

supra, constitutes an retroactive expansion of Florida law

which “flies in the face of this Court's ex post facto

clause/due process clause jurisprudence." Brief of Amicus

Curiae at 16. The amicus relies on a line of cases which

merge the principles of ex post facto jurisprudence with

principles of due process to prevent the retroactive

application of unforeseeable judicial enlargements of

criminal statutes.“ See Bouie v. Columbia, 378 U.S. 347

(1964); Douglas v. Buder, 412 U.S. 430 (1973); Marks v.

United States, 430 U.S. 188 (1977). These cases, at most,

are of tangential relevance.

aad The Ex Post Facto Clause is a limitation upon the powers of

legislative bodies and does not of its own force apply to the judicial branch

of government. See Marks v. United States, 430 U.S. 188, 191, 97S. Ct.

990, 992, 51 L.Bd.2d 260 (1977). Because fundamental principles of

“fair warning” which protect against arbitrary governmental action

undergird both the Ex Post Facto and Due Process Clauses, the Due

Process Clause of the Fourteenth Amendment bars the retroactive

application of a judicial construction which enlarges a criminal statute.

In Bouie, the primary case cited by the amicus, this Court

struck down a novel construction of a state criminal

trespass statute which the Supreme Court of South Carolina

had adopted in affirming the convictions of two black

college students who had entered, and declined to leave, a

segregated restaurant. The Court held that it violated due

process tO convict someone based upon a retroactive

criminal prohibition only recently defined through judicial

construction. Bouie, at 354, 84S. Ct. at 1703. The major

premise of Bouie and the other cases cited by the amicus is

that a person should know before he acts what conduct is

criminal so that he may make an informed decision as to

whether to conform his conduct to the law. For this

reason, under the Due Process Clause and not the Ex Post

Facto clause, judicial constructions that expand the

definitional scope of criminal statutes may not be applied

retroactively. See Marks, 430 U.S. at 191. But no such

issue is presented in this case. The challenged enactment

does not define a crime which has been the subject of

judicial construction. Rather, the statute removes an

eligibility to retain credits allocated as part of an

administrative procedure to allow the orderly release of

prisons if, and only if, prison population levels exceed

capacity thresholds. Thus, petitioner was not presented

with the concern of conforming his conduct in some way

to the terms of the law even, as his conduct had not

bearing on the operation of the law.

The ex post facto question in this case as it relates to

petitioner's original crimes is the same whether the

ineligibility for credit is applied prospectively or the credits

are cancelled retroactively. The change occasioned by the

1992 Act either affects the original punishment or it does

not. See Herring v. Singletary, 879 F. Supp. 1180, 1184

(N.D. Fla. 1995).

G The Ex Post Facto Clause of the Constitution

Does Not Confer A Right to the Continued

Misapplication of Law.

The Ex Post Facto Clause does not prohibit the correction

of a misapplied law. See Stephens v. Thomas, 19 F.3d

498, 500 (10th Cir. 1994); see also, Cortinas v. United

States Parole Commission, 938 F.2d 43, 46 (Sth Cir.

1991): Glenn v. Johnson, 761 F.2d 192, 194-195 (4th Cir.

1985)(holding no ex post facto violation where agency

conformed to Attorney General opinion correcting

misapplication of statute limiting parole until minimum had

been served); Caballery v. United States Parole

Commission, 673 F.2d 43, 47 (2d Cir.), cert. denied, 457

U.S. 1136 (1982).

The 1992 Act rendered petitioner ineligible for

overcrowding release. The FDOC failed to give full effect

to the Act when it continued to allow petitioner’s

elig:bility. When the FDOC released petitioner on the

forecast provisional release date, it did so without statutory

authority. Petitioner’s release was unlawful and Florida

was entitled to reincarcerate petitioner to serve the

remainder of the sentence as originally imposed.*'

41 See Carson v. State, 489 So. 2d 1236 (2 Dist. Ct. App. 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); Johnson v. State, 561 So. 2d 1254 (2 Dist. Ct.

App. 1990)(fact an inmate was mistakenly released from custody before

serving a prison sentence did not terminate that sentence). Because

petitioner's release was occasioned by the FDOC’s erroneous interpretation

of the 1992 Act, he was entitled to receive credit for all time spent at

liberty. See Sutton v. Department of Corrections, 53\ So. 2d 1009 (1

D.C.A. Fla. 1988); Green v. Christiansen, 732 F.2d 1397 (9th Cir. 1984);

see also Giles v. State, 462 So.2d 1063 (Ala.Cr.App. 1985); State v.

While it is unfortunate that the department’s failure to

immediately give effect to the 1992 Act necessitated

petitioner’s return to custody, the FDOC’s mistake in

releasing him does not implicate the Ex Post Facto Clause.

See Stephens, Cortinas, Glenn, Caballery, supra. Given

the fact that the FDOC’s limited interpretation of the 1992

Act essentially gave it no effect at all, the Florida Attorney

General’s interpretation that cancellation of credits was

required to remove petitioner’s eligibility was not only

foreseeable, it was inescapable. The Ex Post Facto Clause

does not afford petitioner the right to enforce a

misinterpreted law. See id.

While petitioner could have raised other constitutional or

state law claims involving his reincarceration after his

erroneous release, petitioner is foreclosed from raising such

claims now.*? If the Court ultimately concurs that the

retroactive provisions of the 1992 Act fall outside the scope

of the Ex Post Facto Clause, then petitioner’s return to

custody and his continued incarceration must stand.

Coleman, 149 Fla 28, 5 So.2d 60 (1941); White v. Pearlman, 42 F.2d

788 (10th Cir. 1930).

° During the course of the proceedings below, Respondent pointed

out that petitioner’s return to custody could give rise to additional claims

not encompassed by the ex post facto challenge, and, therefore, the

petition would be subject to dismissal under the exhaustion doctrine. J.A.

36. Petitioner elected to proceed solely on his ex post facto claim.

CONCLUSION

For the reasons set forth above, the judgment of the

Eleventh Circuit Court of Appeals denying the Certificate

of Probable Cause to review the denial of the Petition for

Writ of Habeas Corpus should be affirmed.

Respectfully submitted,

Susan A. Maher

Deputy General Counsel

Florida Department of Corrections

2601 Blair Stone Road

Tallahassee, Florida 32399

(904) 488-2326

Counsel of Record on behalf

of Respondent Mathis

August 30, 1996

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.