Amicus Curiae Brief — Lynce v. Mathis

No. 95-7452

IN THE

Supreme Court Of The United States

OCTOBER TERM, 1995

KENNETH LYNCE,

Petitioner,

Vv.

HAMILTON MATHIS, SUPERINTENDENT,

TOMOKA CORRECTIONAL INSTITUTION, ez. ai,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

BRIEF OF AMICUS CURIAE, NATIONAL

ASSOCIATION OF CRIMINAL DEFENSE LAWYERS IN

SUPPORT OF PETITIONER

Lisa B. Kemler* Baya Harrison, III

317 South Patrick Street Silver Lake Road

Alexandria, Virginia 22314 Post Office Box 656

(703) 684-7900 Monticello, Florida 32345

(904) 997-8469

* Counsel of Record for Amicus Curiae,

National Association of Criminal Defense Lawyers

Balmar Legal Publishing Services, Washington, D.C. (202) 682-9800

a

i

QUESTION PRESENTED

Whether amended Florida penal statute §944.277 (1992)

violates the constitutional prohibition against ex post facto

laws by withdrawing early release credits previously awarded

to petitioner under the pre-amendment version of the statute,

where that withdrawal was based on petitioner’s 1986 offense

of conviction.

\ ii

TABLE OF CONTENTS

Page

a ii

I cccusessnene iv

INTEREST OF THE AMICUS CURIAE .......0.....0...000 1,2

re ereseteentnsnsnnscncscccnsccecszcszcced 4

SUMMARY OF ARGUMENT .........cccsssssssoossscessseessnnnsnee 4,5

lc leceecreetctinestnecsnaseccnesecsencescecess 5-16

Amended Florida penal statute §944.277

(1992) violates the constitutional prohibition

against ex post facto laws by withdrawing

early release credits previously awarded to

petitioner under the pre-amendment version

of the statute, where that withdrawal was

based on petitioner’s 1986 offense of con-

EE 5

A. Provisional credits are akin to basic and

incentive gain time under Florida law.

Florida’s history of retroactively

withdroving the ability to earn same is

vindictive and violates the ex post facto

clause of the United States Constitution. .......... 5

B. The inability to earn provisional credits

directly increases Lynce’s quantum of

punishment. The state’s retroactive

withdrawal of that ability by virtue of

the 1992 revision of §944.277 fia.

Stat. based upon the nature of petitiun-

ner’s offense of conviction violates the

ex post facto clause of the United States

ET IN nccccccssecsssssszcssccesessaneessesersesresernssenssussansenascusten 16

ey wm fe 18

iv

TABLE OF AUTHORITIES

CASES PAGES

California Dept. of Corrections v. Morales,

514 U.S. ; 181 L Ed. 2d 588 (1995) ............... 4, 13-15

Collins v. Youngblood, 497 U.S. 37 (1990) ...........00-+. 4, 13-16

Gwong v. Singletary, Supreme Court of Florida Case

De. GEG ee thnssnpsnscascsensssensassenepsenmmsnenesnanetnemmensseseteneemnenseseess 12

Joseph C. Magnotti v. Harry K. Singletary,

Case No. 93-8554-Civ.- Moreno, USDC-Southern

District, rendered on March 24, 1994 000... ccccccceeeeeeenees 13

Lowry v. Parole Commission, 473 So.2d 1248

SF pei estecccensesenicesencrnenemsemnssstepresnemeremmssmnemnanscensaneed 8

Miller v. Florida, 482 U.S. 423 (1987) ........ccccccccceeeeeeeees 12, 13

Raske v. Martinez, 876 F.2d 1496

Oe 8, 10, 11, 12

Waldrup v. Dugger, 562 So.2d 681 (Fla. 1990) .................. 8,9

Weaver v. Graham, 450 U.S. 24 (1981) .........ccccccceeeeeeee 4-8, 10

CONSTITUTIONAL PROVISIONS, STATUTES

AND OTHER AUTHORITIES

Art. 1, $10, Cl. 1, U. S. Comst...sccsccsscccccccesssssscsssesssesssseseeeeesee 5

§ 921.001(10)(a), Fla. Stat. (1983) ..............cccccssssssssssssseseeeeeee 2

$§ 944.275(4)(a) and (b), Fla. Stat..........cccccsec0ee0e 3, 4, 6, 8, 10

§ 944.276, Fla. Stat. (1987)..cccccccssccssssscessccssscssssssssesesseeeeeees 2,3

§ 944.277, Fla. Stat. (Supp. 1989) ..............ccccsssse00e iii, 2, 3, 6

§ 944.277(1), Fla. Stat. (Supp. 1992)................- iv, 2, 3, 6, 16

FR re Fe RI, Ce rprrscsenszscnssnsszessnesssessssssessscssszssemnes 2

Op. Att’y Gen. Fla. 092-96 (December 29, 1992) ....cccccs.00- 3

Op. Att’y Gen. 96-92 (March 20, 1996) ....

Rule 37.3(a), Rules of Supreme Court........

Fla. Admin. Code Rule 33-11.0065 (1996)

No. 95-7452

IN THE

Supreme Court Of Che United States

October Term, 1995

KENNETH LYNCE,

Petitioner,

Vv.

HAMILTON MATHIS, SUPERINTENDENT,

TOMOKA CORRECTIONAL INSTITUTION, ez. ai,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

BRIEF OF AMICUS CURIAE, NATIONAL

ASSOCIATION OF CRIMINAL DEFENSE LAWYERS IN

SUPPORT OF PETITIONERS

INTEREST OF AMICUS CURIAE

The National Association of Criminal Defense Lawyers

(“NACDL”) is a District of Columbia non-profit corporation

with a membership of more than 9,000 attorneys and affiliate

members including representatives from all fifty States. The

American Bar Association recognizes the NACDL as an af-

filiate organization and awards it full representation in the

House of Delegates. The NACDL was founded in 1958 to ad-

vance the quality of the defense of the rights of accused per-

sons, as well as to advocate the preservation of constitutional

2

rights in this country. Among the NACDL’s stated objectives

is the promotion of the proper administration of justice. The

NACDL seeks when appropriate to be a voice for the rights of

the clients of its members. Many of those clients, like peti-

tioner in the case at bar, are indigent, incarcerated and unable

to defend themselves against arbitrary and politically popular

governmental action which contravenes the Constitution of

the United States of America. All parties have consented to

the filing of this amicus curiae brief pursuant to Rule 37.3(a)

of the Supreme Court Rules.

STATEMENT

The NACDL adopts the statement of the facts and the

course of the proceedings below as set forth in the brief on the

merits of the petitioner, Kenneth Lynce, emphasizing certain

matters set out herein.

As of October 27, 1985, the date of petitioner’s crimes

(attempted first degree murder and other offenses), the State

of Florida had prospectively eliminated parole and had begun

to substitute sentencing guidelines and various forms of early

release credits which operated to reduce the actual time an

inmate would remain incarcerated (see for example,

§944.598, Fla. Stat. (1983) regarding “emergency gain time”).

During the period of his confinement, petitioner became eligi-

ble to earn “administrative gain time” and “provisional release

credits” pursuant to the provisions of §944.276, Fla. Stat.

(1987) and §944.277, Fla. Stat. (Supp. 1989), respectively.

The various types of early release credits were awarded based

upon the inmate’s adherence to the Department of Correc-

tions’ (“the department’s’”’) rules and a determination by the

State’s executive branch that the prison system was nearing or

had reached lawful capacity.

' $921.001(10)(a), Fla. Stat. (1983) eliminated parole eligibility for

persons whose crimes were committed after October 1, 1983.

3

As a result of prison overcrowding and petitioner’s ad-

herence to the department’s rules and regulations, the peti-

tioner, per the provisions of §944.276, Fla. Stat. (1987) and

§944.277, Fla. Stat. (Supp. 1989), was granted a total of 2,195

days of credits toward early release.’ (J.A. 33, 50) On Octo-

ber 1, 1992, he was set free. (J.A. 50)

A 1992 amendment to §944.277, Fla. Stat. eliminated

convicted murderers from eligibility to receive provisional

release credits. (J.A. 51) At the end of that year, the Florida

Attorney General issued 1992 Op. Att’y Gen. Fla. 092-96

(December 29, 1992) holding that the 1992 amendment

should be applied retroactively. As a result, the department

canceled all credits previously earned by inmates now deemed

covered by the 1992 exclusions, withdrew the 1,860 days of

provisional credits’ earlier awarded to petitioner, obtained a

warrant for his arrest and caused him to be returned to state

prison. (J.A. 51, 52) The retroactive cancellation of peti-

tioner’s credits resulted in a new tentative release date

(“TRD”) of May 19, 1998. (J.A. 52)

SUMMARY OF ARGUMENT

In Florida, state statutes providing for the ability of pris-

oners to earn administrative gain time and provisional credits

are akin to statutes enabling those same prisoners to earn ba-

sic and incentive gain time -- at least insofar as the constitu-

tional prohibition against ex post facto laws is concerned. The

1992 revision of §944.277, Fla. Stat. which, as applied,

caused the Florida Department of Corrections to retroactively

cancel provisional credits previously awarded to petitioner

and force him back into prison was not lawful. This Court’s

’ Petitioner’s actual release date was also advanced by the accumulation

of basic and incentive gain time provided for per the provisions of

$§944.275(4)a) and (b), Fla. Stat., respectively.

* As a result of new legislation effective June 17, 1993, 335 days of

administrative gain time previously awarded to petitioner were also can-

celed. (J.A. 51.)

4

decisions in California Dept. of Corrections v. Morales, 514

U.S. __; 181 L. Ed.2d 588 (1995) and Collins v. Young-

blood, 497 U.S. 37 (1990), do not alter the fact that state laws

such as the 1992 amendment to §944.277, Fla. Stat., which

retroactively increases the quantum of punishment attached to

a sentence, cannot pass constitutional muster simply by being

labeled “procedural” mechanisms for administrative prison

population control. As this Court stated in Weaver v. Gra-

ham, 450 U. S. 23, 29 (1981), “[cjontrary to the reasoning of

the Supreme Court of Florida, a law need not impair a ‘vested

right’ to violate the ex post facto prohibition.” Thus, while

provisional credits may not constitute a vested right and while

petitioner may have acquired them by virtue of the grace of

the Florida legislature, he earned them nevertheless in reliance

upon the very laws that same legislature chose to enact.

ARGUMENT

A. Provisional Credits are akin to basic and incentive

gain time under Florida law. Florida’s history of

retroactively withdrawing the ability to earn same

is vindictive and violates the ex post facto clause of

the United States Constitution.

Article I, section 10, clause 1, United States Constitution,

as discussed in depth in Weaver v. Graham, 450 U.S. 24

(1981), is a restraint on “State” action. It speaks to substance

over form in providing that “(n)o State shall...pass any ex post

facto Law.” It is not concerned with the guise used by the

State to alter “the consequences attached to a crime already

completed...” but whether the effect of the “law” is “a change

(in) the quantum of punishment.” Weaver v. Graham, 450

U. S. at 33.

Thus in Weaver, this Court stated:

[I}t is the effect, not the form, of the law that deter-

mines whether it is ex post facto. The critical ques-

5

tion is whether the law changes the legal conse-

quences of acts completed before its effective date.

450 U.S. at 31. Of equal importance, “[t]he ban (on state ex

post facto laws) also restricts governmental power by re-

straining arbitrary and potentially vindictive legislation.” /d.

at 29. (Citations omitted.)

Unfortunately, the State of Florida, often based upon

opinions promulgated by its attorneys general, has a history of

first enacting early release statutes for Florida prisoners then

arbitrarily attempting to negate the results of its own laws ret-

roactively -- if not with seeming disregard for -- at least not-

withstanding the ex post facto clause of the United States

Constitution. The practical result has been a significant in-

crease in the quantum of punishment to the detriment of thou-

sands of prisoners. The enactment of §944.277(1), Fla. Stat.

(1992 Supp.) by the Florida Legislature, and its retroactive

application, which resulted in the cancellation of some 1860

days of early release credits previously earned by petitioner,

his arrest and return to prison -- is but another chilling exam-

ple of the State’s disregard for the United States Constitution

and that arbitrary history. It should not be countenanced by

this Court. |

Weaver involved changes in Florida’s basic’ gain time

statute enacted after the date of the defendant’s crime. This

Court made it absolutely clear that, even though gain time was

not a “part of the original sentence and, thus, no part of the

punishment annexed to the crime at the time petitioner was

sentenced” (450 U.S. at 31), basic gain time “substantially

alters the consequences attached to a crime completed and

therefore changes ‘the quantum of punishment’.” /d. at 33

4

Basic gain time for petitioner amounted to an automatic 10

days/month or one-third off his total sentence for good behavior. See

§944.275((4)(a), Fla. Stat. (1978).

6

citing Dobbert v. Florida, 432 U.S. at 293-94. As such, the

Court held that the statute “is a retrospective law which can be

constitutionally applied to petitioner only if it is not to his det-

riment.” Jd. The Court added:

Whether a retrospective state criminal statute ame-

liorates or worsens conditions imposed by its rede-

cessor is a federal question. Lindsey v. Washington,

supra, at 400. See Malloy v. South Carolina, 237

U.S. at 184; Rooney v. North Dakota, 196 U.S.., at

325. The inquiry looks to the challenged provision,

and not to the particular individual. Dobbert v.

Florida, supra, at 300; Lindsey v. Washington, su-

pra, at 401; Rooney v. North Dakota, supra, at 325.

Under this inquiry, we conclude § 944.275 (1) is

disadvantageous to petitioner and other similarly

situated prisoners. On its face, the statute reduces

the number of monthly gain-time credits available

to an inmate who abides by prison rules and ade-

quately performs his assigned tasks. By definition,

this reduction in gain-time accumulation lengthens

the period that someone in petitioner’s position

must spend in prison. In Lindsey v. Washington,

supra, at 401- 402, we reasoned that ‘[i]t is plainly

to the substantial disadvantage of petitioners to be

deprived of all opportunity to receive a sentence

which would give them freedom from custody and

control prior to the expiration of the 15-year term.’

Here, petitioner is similarly disadvantaged by the

reduced opportunity to shorten his time in prison

simply through goed conduct.

Weaver, 450 at 33-34. (Emphasis added.)

For the same reasons, the retroactive application of

§944.277, Fla. Stat. (1992), like the basic gain time law under

attack in Weaver, “constricts the inmate’s opportunity to earn

early release, and thereby makes more onerous the punish-

7

ment for crimes committed before its enactment. This

result runs afoul of the prohibition against ex post facto laws.”

Weaver, 450 U.S. at 35-36.

In Lowry v. Parole Commission, 473 So.2d 1248 (Fla.

1985), the Supreme Court of Florida expedited the disposition

of an inmate’s habeas corpus/mandamus petition after the

Florida Parole Commission denied him (and effectively hun-

dreds of other similarly situated prisoners) eligibility for pa-

role as a result of an erroneous attorney general’s opinion.

See Op. Att’y Gen. 85-11 (February 13, 1985). This opinion,

which flew in the face of the pertinent parole statutes and

more than 20 years of Commission action, provided that “...a

prisoner serving consecutive sentences is not eligible for pa-

role if he is under a sentence he has not yet begun to serve.”

Lowry, 473 So.2d at 1249. After examining the relevant stat-

utes, the court concluded that the attorney general’s opinion

“does not represent legislative intent.” /d. at 1250. Lowry’s

parole eligibility was reinstated.

In Waldrup v. Dugger, 562 So.2d 681 (Fla. 1990), and

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

reviewed Florida’s incentive gain time law, §944.275, Fla.

Stat., and specifically the contention that the department’s

discretionary authority rendered it immune to legal challenge

when the department decides to curtail incentive gain time.

These cases are relevant since the department advances es-

sentially the same argument in the case at bar by claiming that

administrative gain time and provisional release credits are

simply discretionary “mechanisms for reducing the prison

population for the administrative convenience of the Depart-

ment of Corrections.” (J.A. 39.) In Waldrup the Supreme

Court of Florida stated:

It is well established that a penal statute violates the

ex post facto clause if, after a crime has been com-

mitted, it increases the penalty attached to that

crime. The United States Supreme Court clearly

8

established this principle in the early case of Weaver v.

Graham, 450 U.S. 24, 28, 101 S.Ct. 960, 963,67

L.Ed.2d 17 (1981). (Other citations omitted.)

The policy underlying this prohibition is “to assure

that legislative Acts give fair warning of their effect

and permit individuals to rely on their meaning until

explicitly changed.” Id., 450 U.S. at 280-29, 101

S.Ct. at 963-64 (citing Dobbert v. Florida, 432 U.S.

282, 298, 97 S.Ct. 2290, 2300, 53 L. Ed. 2d 344

(1977). (Other citations omitted.)

A retroactive law, however, is not ex post facto

unless two critical elements are present: The law

must apply to events occurring before its enact-

ment, and it must disadvantage the offender.

(Citations omitted.)

Waldrup, 562 So.2d at 691. In applying the first of the “two

critical elements” to incentive gain time, the court said in part:

We have no doubt that both the incentive and basic

gain-time statutes challenged by Waldrup contain

the first of these elements.

* + *

Both of these gain-time revisions, then, apply to a

large class of inmates like Waldrup whose offenses

occurred before June 1983, when the act took ef-

fect.

Id. (Emphasis added.)

Likewise, in Raske v. Martinez, 876 F.2d 1496 (11th Cir.

1989), supra, the court stated:

The State contends that basic gain time is funda-

mentally different than incentive gain time because

basic gain time is automatically earned by prisoners,

while incentive gain time is earned only at the dis-

cretion of prison officials. Because incentive gain

9

time is discretionary in nature, the State contends

that petitioner has no right to receive incentive gain

time and that the State therefore can alter the

method by which incentive gain time is calculated

without violating the ex post facto clause of the

Constitution.

Id. at 1499. Since Raske did have a right -- a constitutional right -

- not to have his ability to earn incentive gain time stripped from

him -- the Court found that “we do not find the State’s argument

to be persuasive.” Id. (Emphasis added). Finding that its deci-

sion was “controlled by the principles announced by the Supreme

Court in Weaver v. Graham,” the Eleventh Circuit recognized

that the ability to earn incentive gain time was a privilege granted

by the legislature (“the duties that allow a prisoner to earn such

gain time are a matter of legislative grace”) not the department.

Id. at 1499. At the time that Raske committed his crime,

§944.275(4)(b), Fla. Stat.(1978) was controlling and afforded

him the right to incentive gain time. Thus, even though that stat-

ute contained the word “may,” the Court stated:

We see no fundamental distinction between the condi-

tions that a prisoner must satisfy to receive basic gain

time and the conditions that a prisoner must satisfy to

earn discretionary gain time. In both cases, the de-

partment decides in its sole discretion whether the

prisoner has behaved well enough or worked diligently

enough to earn gain time.

Raske, 876 F.2d at 1497, 1499. The Court further noted:

We agree, of course, that incentive gain time is discre-

tionary. We note however, that this discretion is not

complete. Thus, for example, the State does not con-

tend that a prisoner who has performed his work in an

Outstanding manner can legally be denied incentive

gain time for that work, despite its so-called

“discretionary” nature. See Pettway v. Wainwright,

450 So.2d 1279 (Fla. Ist DCA 1984).

10

Id. at 1499, n. 6. The Raske court concluded:

Thus even though the opportunity to earn incentive

gain time is dependent on the grace of the legisla-

ture and the availability of jobs, we conclude that if

the State affords its inmates such work, it is bound

to reward prisoners for their services at a gain time

rate at least equally advantageous to that in effect at

the time those prisoners’ offenses.

Id. at 1499.

Likewise, the opportunity for petitioner herein to earn

provisional credits was dependent on the grace of the Florida

Legislature, an overcrowded prison population and his ability

to conform to the rules and regulations of the department.

Having earned provisional credits pursuant to the statutory

scheme the Florida Legislature itself established, that body

cannot retroactively strip him of those provisional credits and

force him back into prison.”

In Miller v. Florida, 482 U.S. 423 (1987), the peti-

tioner challenged sentencing guidelines which came into ef-

fect after his crime occurred claiming that using the guidelines

to determine his sentence constituted an ex post facto viola-

tion. Application of the new guidelines caused him to fall

into a 5 and 1/2 to 7 years presumptive sentence range instead

of a 3 and 1/2 to 4 and 1/2 years range. Finding such applica-

tion to violate the ex post facto clause, this Court held:

* Despite the holding in Raske regarding incentive gain time, the Flor-

ida Attorney General recently issued Op. Att’y Gen. 96-92 (March 20,

1996) to the effect that the department had the right on its own to retroac-

tively terminate the ability of certain inmates (violent and sex offenders)

to earn incentive gain time. As a result, the department, on April 21,

1996, adopted Fla. Admin. Code Rule 33-11.0065 (1996) barring those

inmates from earning incentive gain time in the future. This rule is the

subject of a mandamus petition pending in the Supreme Court of Florida.

See Gwong v. Singletary, Supreme Court of Florida Case No. 87,824.

11

A law is retrospective if it “changes the legal conse-

quences of acts completed before its effective date.”

Weaver, supra, at 31, 67 L. Ed. 2d. 17, 101 S.Ct.

960. Application of the revised guidelines law in

petitioner’s case clearly satisfies this standard.

Miller v. Florida, 482 U.S. at 430. The department then made

an argument similar to the one offered by respondents -- that

the petitioner was on notice that provisional credits were

“contemplated not as a prisoner entitlement but merely as an

escape valve which would be triggered only by the need to

alleviate overcrowding in the state prison system.” (J.A. 45,

quoting from Joseph C. Magnotti v. Harry K. Singletary, Case

No. 93-8554-Civ.- Moreno, USDC-Southern District, decided

March 24, 1994.) In rejecting this argument, this Court

noted:

Respondent nevertheless contends that the ex post

facto concern for retrospective laws is not violated

here because Florida’s sentencing statute “on its

face provides for continuous review and recommen-

dation of changes to the guidelines.” Brief for Re-

spondent 27-28. Relying on our decision in Dob-

bert, respondent argues that it is sufficient that peti-

tioner was given ‘fair warning’ that he would be

sentenced pursuant to the guidelines then in effect

on his sentencing date. Brief for Respondent 28.

In our view, Dobbert provides scant support for

such a pinched construction of the ex post facto

prohibition.

Ss me

The statute in effect at the time petitioner acted did

not warn him that Florida prescribed a 5 1/2 to 7

year presumptive sentence for that crime. Petitioner

simply was warned of the obvious fact that the sen-

tencing guidelines law -- like any other law -- was

subject to revision. The constitutional prohibition

12

against ex post facto laws cannot be avoided merely

by adding to a law that it might be changed.

Miller v. Florida, 482 U.S. at 430-31.

B. The inability to earn provisional credits directly in-

creases petitioner’s quantum of punishment. The

state’s retroactive withdrawal of that ability by virtue

of the 1992 revision of §944.277, Fla. Stat. based upon

the nature of his offense of conviction, violates the ex

post facto clause of the United States Constitution.

Relying upon California Dept. of Corrections v. Mo-

rales, supra, and Collins v. Youngblood, 497 U.S. 37, the de-

partment contends that, since provisional credits are simply a

“procedural” mechanism to control prison population unre-

lated to any “substantial personal right” of the petitioner, no

ex post facto violation occurs when those credits are canceled

after the fact. (J.A. 39-42.)

Morales involved parole consideration, not gain time

or provisional credits toward early release. In Morales, the

State of California did not eliminate the petitioner’s eligibility

for parole, nor did it change the date of his initial interview

for parole suitability. It merely required him to wait 36

months after his initial interview (instead of one year as the

Statute in effect at the time Morales committed his offense of

conviction provided) for a subsequent suitability hearing.

Morales, 514 U.S. at __ ; 181 L Ed. 2nd at 593. Nor did the

Morales court overturn Weaver v. Graham, 450 U.S. 24

(1981) and its progeny; instead it clarified that line of deci-

sions See Morales, 514 U.S. at__ ; 181 L Ed. 2nd at 588." In

Morales, this Court, distinguishing the Weaver v. Graham

* In footnote 3 of the opinion in Morales, however, the Court receded

from the language in Weaver and other decisions which implicd that every

retroactive legislative act which might be to the disadvantage of a defen-

dant is necessarily an ex post facto violation.

13

line of cases, held that whether a retrospective legislative act

violates the ex post facto law constitutional prohibition “must

be a matter of degree” (citation omitted), and amendments to

laws which create “only the most speculative and attenuated

possibility of producing the prohibited effect of increasing the

measure of punishment for covered crimes” do not accom-

plish that evil. Morales, 514 U.S. at___; 181 L. Ed. 2d at

597. This Court then determined that no ex post facto viola-

tion occurred based on the fact that Morales, a twice con-

victed murderer serving at least one 15 years to life sentence,

had no possible expectation of being paroled within the 36

months waiting period, his parole eligibility was not was not

canceled and the rules regarding his ultimate suitability for

parole were not altered.

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

jury, having convicted Collins of aggravated sexual abuse,

imposed a substantial fine even though no authorization to do

so was provided for by law. A later Texas statute authorized

the appellate court to reform an improper jury verdict which is

what the Texas appeals court proceeded to do. Collins

claimed that the Texas verdict reform statute was an ex post

facto law. Id. at 39,40. Finding, in part, that the Texas ver-

dict reform statute was procedural and did not “make more

burdensome the punishment for a crime,” Collins’ habeas pe-

tition was denied. /d. at 52.

The Collins Court warned, however, that “by simply

labeling a law ‘procedural,’ a legislature does not thereby

immunize it from scrutiny under the Ex Post Facto Clause”

and acknowledged that “(s)ubtle ex post facto violations are

no more permissible than overt ones. /d. at 46 (citations

omitted). Thus, the question is whether the retroactive law is

substantive in that it actually “increase(s) the punishment” or

stated slightly differently, “make(s) more burdensome the

punishment for a crime.” /d. at 41, 52.

14

The 1992 revision of § 944.277(1), Fla. Stat., may be

labeled a procedural management tool by the department, but

its actual effect upon petitioner was to increase his punish-

ment by causing him to be returned to prison. (J.A. 51.) In

addition, it makes more burdensome the punishment for his

original crimes by causing him to have to remain confined

until May 19, 1998. (J.A. 52) Thus, the subject statute is a

violation of the ex post facto clause of the United States Con-

stitution.

CONCLUSION

For the reasons set out above, Amicus Curiae, the

NACDL, urges this Court to grant the relief sought by peti-

tioner, hold that §944.277, Fla. Stat. (1992), as applied to pe-

titioner and other similarly situated Florida prisoners, violates

the ex post facto clause of the United States Constitution, is-

sue its writ of habeas corpus, order that petitioner be released

from the custody of respondents and grant him such other and

further relief as is deemed necessary and appropriate.

Respectfully Submitted,

Lisa B. Kemler*

317 South Patrick Street

Alexandria, Virginia 22314

(703) 684-7900

Baya Harrison, III

Silver Lake Road

Post Office Box 656

Monticello, Florida 32345

(904) 997-8469

* Counsel of Record for Amicus Curiae,

National Association of Criminal Defense Lawyers

July 12, 1996