# Amicus Curiae Brief — Lynce v. Mathis

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1997
- **Citation:** 519 U.S. 433

## Text

Supreme Court, y S.

FILE Dp
JUL 12 1996

No. 95-7452

Bi

_

InN THE

Supreme Court of the United States

OCTOBER TERM, 1996

KENNETH LYNCE,
Petitioner,
Vv.

HAMILTON MATHIS, Superintendent
Tomoka Correctional Institution, et ai.,
Responden.

On Writ of Certiorari to the
United States Court of Appeals
for the Eleventh Circuit

BRIEF FOR THE
FLORIDA PUBLIC DEFENDER ASSOCIATION, INC.,
AS AMICUS CURIAE IN SUPPORT OF PETITIONER

CHET KAUFMAN
Assistant Public Defender
301 South Monroe Street
Suite 401
Tallahassee, Florida 32301
(904) 488-2458
Counsel of Record
on behalf of
Florida Public Defender
Association, Inc.

WILSON - Eras Printing Co., Inc. - 789-0096 - WasHiIncToNn, D.C. 20001

TABLE OF CONTENTS

TABLE OF AUTHORITIES ..2000.0.2.2......--..:cccececeseseoeeceeess

STATEMENT OF INTEREST OF THE AMICUS
cecil ict oliciidsiepthtmenielninecdaipthoeensnshamnantibesiteoasepacesnee

THE STATE OF FLORIDA MUST NOT BE PER-
MITTED TO ARBITRARILY INTERPRET AND
APPLY A _ PROSPECTIVE PROVISIONAL
CREDITS STATUTE BY CLAIMING IT WAS
AMENDED BY SILENCE TO BECOME RETRO-
ACTIVE, THEREBY AUTHORIZING THE
STATE TO REARREST PETITIONER AFTER
HE HAD BEEN LAWFULLY RELEASED FROM
CUSTODY AND TO KEEP HIM IN PRISON FOR
PE EE UD encncresersetinscrsndtingsintenintenenintinnmentinens

A. The Ex Post Facto Clause Protects Citizens
From Arbitrary And Unpredictable Exercises
Of State Legislative Power —............000000..

B. Ex Post Facto Protections Merge With Identical
Due Process Protections To Prevent Other Arbi-
trary And Unpredictable Exercises Of State
EEE ee ann a ae aT Lae

C. Florida’s Executive Branch Arbitrarily De-
cided To Change Florida Law After Petitioner
TTR

D. The Retroactive Application Of A Law That
Had Not Changed Was Arbitrary And Unpre-
dictable, In Violation Of Ex Post Facto/Due

EE Se aE a
ES
TT, nC aoe ee an NE

ii
TABLE OF AUTHORITIES

U.S. SUPREME COURT CASES Page

Beazell v. Ohio, 269 U.S. 167, 46 S. Ct. 68, 70
A BR | 5
Bouie v. Columbia, 378 U.S. 347, 84 S. Ct. 1697,
ON 6, 7, 16
Calder v. Bull, 3 Dall. 386, 1 L.Ed. 648 (1798)... 5,6

iii

TABLE OF AUTHORITIES—Continued

Page

Felk v. Dugger, 589 So. 2d 905 (Fla. 1991), cert.

denied, 504 U.S. 918, 112 S. Ct. 1961, 118 L. Ed.
a 12
Griffin v. Singletary, 638 So. 2d 500 (Fla. 1994)... 15, 16
Ipnar v. Singletary, 620 So. 2d 761 (Fla. 1993)... 14, 16

State v. Family Bank of Hallandale, 623 So. 2d
ES dees 13

California Dep’t of Corrections v. Morales, 115

S. Ct. 1597, 181 L.Ed.2d 588 (1995) —......-000..0...... 5, 16 State v. Moore, 630 So. 2d 1235 (Fla. 2d DC
Collins v. Youngblood, 497 U.S. 37, 110 S. Ct. 2715, a EEE .
wes F | Y, ter 5
Dobbert v. Florida, 482 U.S. 282, 97 S. Ct. 2290, 58 STATUTES AND LEGISLATIVE AUTHORITIES
eS FY. | re 6 Chapter 89-100, Section 4, Laws of Florida eee 9
Douglas v. Buder, 412 U.S. 480, 983 S. Ct. 2199, 37 Chapter 89-100, Section 6, Laws of Florida .............. 9, 11
eS Ft f, aes 6, 8, 16 Chapter 89-526, Section 5, Laws of Florida ..... ......... 9
Joint Anti-Facist Refugee Committee v. McGrath, Chapter 90-186, Section 1, Laws of Florida... 9
341 U.S. 128, 71 S. Ct. 624, 95 L. Ed. 817 (1951).. 13 Chapter 90-186, Section 4, Laws of Florida a eae 9
Landgraf v. USI Film Products, 511 U.S. 244, 114 Chapter 90-337, Section 14, Laws of Florida ......... 9
S. Ct. 1488, 128 L. Ed. 2d 229 (1994) 0000000... 9, 15 Chapter 91-280, Section 14, Laws of Florida ........... 9
Malloy v. South Carolina, 237 U.S. 180, 35 S. Ct. Chapter 91-280, Section 17, Laws of Florida ......... 9
507, 59 L. Ed. 905 (1915) 2.0... cccccececsececeeseseeeeeeeee 5 Chapter 92-310, Section 12, Lawsof Florida....... = 10
Marks v. United States, 430 U.S. 188, 97 S. Ct. 990, Chapter 92-310, Section 37, Laws of Florida 10
Se F | YY. a 6, 8, 16, 17 Chapter 93-406, Section 32, Laws of Florida... a 14
Memoirs v. Massachusetts, 383 U.S. 413, 86 S. Ct. Section 944.277, Florida Statutes (1989) 9, 10, 11
975, 16 L. Ed. 2d 1 (1966) 22... ccceecececeeeeeeeeeees x Section 944.277, Florida Statutes (1991)... 9
Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, Section 944.277, Florida Statutes (Supp. 1990) 9
OT La WBA. 08 GOD COBTED ncceccneee - Section 944.277, Florida Statutes (Supp. 1992)... 10, 16
Section 944.277(1) (i), Florida Statutes (1989) __ 11, 12,
FLORIDA CASES 13, 15
Department of Legal Affairs v. District Court of Section 944.278, Florida Statutes (1993)... ............ 14
Appeal, 434 So. 2d 310 (Fla. 1983) 2.0.0.0... 14
Dominguez v. State, 17 Fla. L. Weekly D1853 (Fla. CONSTITUTIONS
ist DCA July 29, 1992), revised on rehearing on Amendment V, United States Constitution... 6, 8
other grounds, 606 So. 2d 757 (Fla. lst DCA Amendment XIV, United States Constitution ......... 6
1992) ....----eeoemenseeveeeconeeseseeeeeecneesnnereneesencenncenaneesnness 12, 13 Article I, Section 10, clause 1, United States Consti-
Dugger v. Rodrick, 584 So. 2d 2 (Fla. 1991), cert. a 5
ny me yo amapeadeiti 12, 14 OTHER AUTHORITIES

Eady v. State, 604 So. 2d 559 (Fla. lst DCA 1992) .. 3
Eady v. State, 622 So. 2d 61 (Fla. lst DCA 1998)... 3

Florida House of Representatives Committee on
Corrections, HB 197-H, Staff Analysis (May 29,
Neen eueeseonenouns 11

iv
TABLE OF AUTHORITIES—Continued

Florida House of Representatives Committee on
Corrections, CS/HB 197-H, 19-H, and 131-H,
Staff Analysis (June 3, 1992) ...............................

Florida House of Representatives Committee on
Corrections, CS/2d ENG/HB 197-H, 19-H, and
131-H, Staff Analysis (July 8, 1992) —...............

Lawrence Tribe, American Constitutional Law, 660
dg A oa SEs oni A

Letter of Department of Corrections Secretary
Harry K. Singletary to Attorney General Robert
A. Butterworth (Dec. 30, 1992) 0...

Letter of Attorney General Robert A. Butterworth
to Department of Corrections Secretary Harry
K. Singletary (Dec. 31, 1982) ..............................

Opinion of Attorney General of Florida 92-96 (Dec.
pe alien ait. cotter Fal i ews dil a Pee

The Federalist Papers No. 44, p. 282 (New Ameri-
EE SRI SI ee

The Federalist Papers No. 84, p. 512 (New Ameri-
ff FSS en te

Page

11

11

13

12

In THE
Supreme Court of the United States

OcTOBER TERM, 1996

No. 95-7452

KENNETH LYNCE,
Petitioner,
Vv.
HAMILTON MATrTHIS, Superintendent
Tomoka Correctional Institution, ef al.,

Respondent.

On Writ of Certiorari to the
United States Court of Appeals
for the Eleventh Circuit

BRIEF FOR THE
FLORIDA PUBLIC DEFENDER ASSOCIATION, INC.
AS AMICUS CURIAE IN SUPPORT OF PETITIONER

STATEMENT OF INTEREST OF THE AMICUS CURIAE
This brief is submitted by the Florida Public Defender
Association, Inc., as amicus curiae in support of peti-
tioner Kenneth Lynce. Counsel for petitioner Lynce, Joel
T. Remland, and counsel for respondent Mathis, Susan A.
Maher, have consented in writing to the Association’s ap-
pearance as an amicus in support of petitioner’s cause.
Their letters of consent have been filed with the clerk.

The Florida Public Defender Association, Inc., is a
nonprofit organization composed of the twenty (20)

2

elected Public Defenders representing each of the State’s
judicial circuits, their eight hundred (800) Assistant
Public Defenders, and their support staffs. The Associa-
tion focuses on matters relating to the administration of
criminal justice in Florida, as well as matters relating to
the needs and interests of public defenders in particular.
The Association commonly participates as an amicus
curiae in judicial proceedings where interests of Associa-
tion members are at issue.

Thousands of former and current clients of Association
members are incarcerated in the custody of the Depart-
ment of Corrections of the State of Florida. Those clients
are subject to the statutes of the State of Florida and reg-
ulations of the Department, including its practice of
awarding, denying, and canceling provisional credits, gain
time, and other such measures, all of which directly affect
the length of time an inmate must serve in prison.

Many present and former clients have contacted, and
continue to contact, members of this Association to de-
termine their rights and remedies with respect to the
award, denial, and cancellation of provisional credits and
other such awards that make up a part of the sentencing
scheme in Florida. Some clients have asked members of
this Association to represent them in judicial proceedings
to set aside their pleas or to seek other relief as appro-
priate when credits have been denied or canceled. It is
not uncommon for members of this Association to be
appointed by the courts of the State of Florida to repre-
sent indigent inmates who have made colorable collateral
claims with respect to the legality of state sentencing and
incarceration practices, and who require legal services at
evidentiary hearings or in appellate proceedings, just as
the Federal Public Defender was appointed to represent
petitioner Lynce in the case at bar.

The State of Florida has engaged in the practice of
retroactive cancellation of sentencing credits in the past,
and it continues to do so today. This Association has an

3

abiding interest in clarifying the constitutional authority
of the State of Florida to engage in such questionable
practices.

STATEMENT

One of the duties of every criminal defense lawyer in
Florida is to advise clients about all the sentencing mech-
anisms that may affect them. This is an absolutely neces-
sary and common practice, and it plays an active role in
every client’s decision-making process as to what plea to
enter and whether, and to what extent, the client should
bargain for a sentence. Provisional credits in particular
have played a role in that daily practice. An allegation
that a client relied on counsel’s inappropriate advice
about provisional credits eligibility provides a colorable
claim of ineffective assistance of counsel under Florida
law. Eady v. State, 622 So. 2d 61 (Fla. Ist DCA 1993);
see also Eady v. State, 604 So. 2d 559 (Fla. Ist DCA
1992). Additionally, because a judge is not permitted to
depart downward from the sentencing guidelines due to
prison overcrowding considerations, State v. Moore, 630
So. 2d 1235 (Fla. 2d DCA 1994), a lawyer must take
provisional credits and other overcrowding-related statu-
tory mechanisms into account in the plea bargaining
process.

Accordingly, the award of provisional credits has played
a significant role in the conduct of criminal justice in the
courts of the State of Florida. The petitioner’s cause
should be viewed in light of these practical considerations.

SUMMARY OF ARGUMENT

The ex post facto clause prohibits arbitrary state action
and requires states to provide fair warning that the laws
have changed, entitling all persons to the right to rely on
the law until the Legislature explicitly changes the law.
Likewise, this Court’s jurisprudence has merged these ex
post facto clause principles with the identical principles
of due process to prevent another branch of state govern-

4

ment from unforeseeably and retroactively enlarging penal
law.

In the present case, the executive branch of the State
of Florida, with the blessings of Florida’s judicial branch,
unforeseeably and arbitrarily enlarged a prospective pro-
visional credits statute by applying it retroactively, re-
sulting in the rearrest and reconfinement of petitioner
Lynce for five more years after he had been released.
The executive branch made that decision even though no
explicit law change had been made by the Legislature
and even though its interpretation flies in the face of the
language of the law, the legislative history, and settled
principles of general law. This is the epitome of arbitrari-
ness and unfair warning prohibited by the United States
Constitution.

ARGUMENT

THE STATE OF FLORIDA MUST NOT BE PER-
MITTED TO ARBITRARILY INTERPRET AND APPLY
A PROSPECTIVE PROVISIONAL CREDITS STATUTE
BY CLAIMING IT WAS AMENDED BY SILENCE TO
BECOME RETROACTIVE, THEREBY AUTHORIZING
THE STATE TO REARREST PETITIONER AFTER
HE HAD BEEN LAWFULLY RELEASED FROM CUS-
TODY AND TO KEEP HIM IN PRISON FOR FIVE
MORE YEARS.

The question in this case boils down to whether the
State of Florida is permitted to expand its interpretation
of a provisional credits statute that was prospective and
had not changed by claiming it had changed to become
retroactive, thereby authorizing the State to rearrest and
impose additional incarceration on the petitioner whom
the State already had released. The answer may well rest
in the merger of “arbitrariness” and “fair warning” pro-
tections long held to be both part of ex post facto clause
jurisprudence and core values fundamental to the liberty
interest protected by due process.

5

A. The Ex Post Facto Clause Protects Citizens From
Arbitrary And Unpredictable Exercises Of State Legis-
lative Power.

History demonstrates that a core value of the ex post
facto clause, U.S. Const. art. I, § 10, cl. 1, is to protect
citizens against arbitrary state actions. As Alexander
Hamilton observed in discussing the ex post facto clause,
“arbitrary imprisonments[] have been, in all ages, [one
of] the favorite and most formidable instruments of
tyranny.” The Federalist Papers No. 84, p. 512 (New
American Library ed. 1961). Accordingly, this Court has
held that the ex post facto clause ban was intended to
“‘secure against arbitrary and oppressive legislative ac-
tion.’ Collins v. Youngblood, 497 U.S. 37, 110 S. Ct.
2715, 111 L. Ed. 2d 30, 46 (1990) (quoting Malloy v.
South Carolina, 237 U.S. 180, 183, 35 S. Ct. 507, 59
L. Ed. 905 (1915)); Beazell v. Ohio, 269 U.S. 167, 171,
46 S. Ct. 68, 70 L. Ed. 716 (1925); see also California
Dep't of Corrections v. Morales, 115 §. Ct. 1597, 131
L, Ed. 2d 588, 598 (1995) (constitutionality of Califor-
nia law reducing frequency of parole eligibility hearings
affirmed partly because procedure was not arbitrary);
Calder v. Bull, 3 Dall. 386, 388, 1 L. Ed. 648 (1798)
(Chase, J.) (the ban protects against “apparent and
flagrant abuse of legislative power; as to authorize mani-
fest injustice by positive law”).

Joined with that core value, history shows, is the re-
quirement that a State must give fair warning to its
citizens as to whether and how the State is authorized
to act punitively against the individual. In this vein,
James Madison said the ex post facto clause was a neces-
sary part of the “constitutional bulwark in favor of per-
sonal security and private rights” because

[t]he sober people of America are weary of the fluc-
tuating policy which has directed the public councils.
They have seen with regrct and indignation that sud-
den changes and legislative interferences, in cases af-

6

fecting personal rights, become jobs in the hands of
enterprising and influential speculators, and snares
to the more industrious and less informed part of
the community.

The Federalist Papers No. 44, p. 282 (New American
Library ed. 1961). In Calder v. Bull, Justice Paterson
quoted Blackstone in describing how the government’s
duty to enable citizens to “foresee” government’s punitive
action is a necessary part of the constitutional protection.
Calder v. Bull, 3 Dall. at 396 (Paterson, J.) (citing |
Blackstone Commentaries 46). Thus, for example, in
Dobbert v. Florida, 432 U.S. 282, 97 S. Ct. 2290, 53
L. Ed. 2d 344 (1977), the Court found no ex post facto
violation in Florida’s alteration of its capital sentencing
scheme after Dobbert’s trial because the penal statutes
provided fair warning of the quantum of punishment he
faced, and that aspect of the sentencing scheme had not
changed.

B. Ex Post Facto Protections Merge With Identical Due
Process Protections To Prevent Other Arbitrary And
Unpredictable Exercises Of State Power.

The Court has recognized that the ex post facto clause
protections against arbitrary and unpredictable state acts
are so fundamental to our concept of ordered liberty that
they must be applied to restrain retroactive government
action even when ex post facto legislation is not directly
at issue. Accordingly, this Court expressly relied on its
ex post facto clause jurisprudence to hold that when gov-
ernment unforeseeably expands the law by judicial inter-
pretation and then uses that new interpretation to deprive
an accused of liberty, the government violates funda-
mental rights protected by the due process clauses of the
fourteenth amendment, Bouie v. Columbia, 378 U.S. 347,
84 S. Ct. 1697, 12 L. Ed. 2d 894 (1964); Douglas v.
Buder, 412 U.S. 430, 93 S. Ct. 2199, 37 L. Ed. 2d 52
(1973), and the fifth amendment, Marks v. United States,
430 U.S. 188, 97 S. Ct. 990, 51 L. Ed. 2d 260 (1977).

7

Bouie v. Columbia virtually merged the ex post facto
and due process clauses to guard against arbitrary and
unpredictable state action. The State of South Carolina
prosecuted for criminal trespass two individuals who par-
ticipated in a “sit in” demonstration, utilizing the theory
that they violated the law by remaining in a commercial
premises after being told to leave. The criminal trespass
statute defined the crime as the “entry upon the lands of
another . . . after notice from the owner or tenant pro-
hibiting such entry.” /d. at 349 n.1. In affirming the
convictions, a state court construed the statute expans-
ively to include. the act of remaining on the premises
after receiving notice to leave. This Court threw out the
convictions, relying on fair warning and arbitrariness prin-
ciples underlying the ex post facto clause to inform its
due process clause decision.

The Court noted that broadly applying what appears
to be a facially clear and narrow statute “lulls the poten-
tial defendant into a false sense of security” because he
has “no reason even to suspect that conduct clearly out-
side the scope of the statute as written will be retroactively
brought within it by an act of judicial construction.” /d.
at 352. Under these circumstances, ex post facto prin-
ciples are directly implicated:

{A]n unforeseeable judicial enlargement of a criminal
Statute, applied retroactively, operates precisely like
an ex post facto law, such as Art. I, § 10, of the Con-
stitution forbids. . .. If a state legislature is barred
by the Ex Post Facto Clause from passing such a law,
it must follow that a State Supreme Court is barred
by the Due Process Clause from achieving precisely
the same result by judicial construction.

Bouie, 378 U.S. at 353-54 (footnote omitted ).

Applying this reasoning to the facts, the Court sur-
veyed South Carolina law and determined that the statute
was clear and narrow on its face, the statute had not
changed, and judicial interpretation of the statute had

8

not given it the breadth claimed by South Carolina until
after the conduct in that case had occurred. The Court
reversed the convictions because the demonstrators had
no “fair warning” that their conduct was unlawful.

In Marks v. United States, 430 U.S. 188, 97 S. Ct.
990, 51 L. Ed. 2d 260 (1977), this Court underscored
“fair warning” as one of the underpinnings of the con-
Stitution’s ex post facto clause, and further entrenched it
as a fundamental concept of liberty:

[The principle on which this [Ex Post Facto] Clause
is based—the notion that persons have a right to fair
warning of that conduct which will give rise to crim-
inal penalties—is fundamental to our concept of con-
Stitutional liberty.

430 U.S. at 191. Thus it is embraced within the Fifth
Amendment’s due process clause. Jd. Marks applied that
rationale to reverse convictions on obscenity-related
charges because the trial judge erroneously had instructed
the jury under the new and expansive standards of Miller
v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d
419 (1973), rather than the more narrow standard for-
mulated by Memoirs v. Massachusetts, 383 U.S. 413, 86
S. Ct. 975, 16 L. Ed. 2d 1 (1966), which had been the
law when the offenses occurred.

This Court similarly reversed a Missouri court’s proba-
tion revocation order in Douglas v. Buder, 412 U.S. 430,
93 S. Ct. 2199, 37 L. Ed. 2d 52 (1973). Douglas had
been on probation, a condition of which required that he
report all “arrests” “without delay.” 412 U.S. at 431.
He was involved in a multi-car traffic accident, was cited
for speeding, and reported that citation to his probation
Officer eleven days later. A Missouri state court found
his report to be tardy in violation of that condition of his
probation and sentenced him to prison. A state appellate
court affirmed. This Court, however, concluded in part
that the state court’s decision unconstitutionally expanded
the interpretation of “arrest” under Missouri law retro-

9

actively to include a “traffic citation” within its reach
when prior state law did not support such a broad defi-
nition. 412 U.S. at 432.

Just as this Court used ex post facto clause jurispru-
dence to inform its due process clause decisions, so too
should the Court use its due process clause jurisprudence
to inform the decision in this case. The executive branch
of the State of Florida, aided by the judicial branch, un-
foreseeably applied a statute in a retroactive manner even
though that statute, historically and facially, was pro-
spective only and the Legislature gave no fair warning
that it had changed. The fair warning and arbitrariness
protections these clauses provide are identical and over-
lap to limit state action infringing on liberty in the con-
text of the peculiar circumstances presented here. Cf.
Landgraf v. USI Film Products, 511 U.S. 244, 114 S. Ct.
1483, 128 L. Ed. 2d 229, 252 (1994) (demonstrating
the unity of purpose of the ex post facto and due process
clauses as reflected in general legal policy against retro-
activity).

C. Florida’s Executive Branch Arbitrarily Decided To
Change Florida Law After Petitioner Had Won His
Freedom.

The best way to see how these merged principles apply
is to examine the way the Florida law changed, beginning
with the adoption of the provisional credits statute. When
the Legislature created provisional credits in 1988, as
amended prior to 1992, the Legislature said nothing what-
soever to even suggest that provisional credits, once law-
fully awarded, might be subject to retroactive cancellation.
See chs. 89-100, §§ 4, 6, 89-526, § 5, Laws of Fla. (codi-
fied at § 944.277, Fla. Stat. (1989)); chs. 90-337, § 14,
90-186, §§ 1, 4, Laws of Fla. (codified at § 944.277, Fla.
Stat. (Supp. 1990) ); ch. 91-280, §§ 14, 17, Laws of Fla.
(codified at § 944.277, Fla. Stat. (1991)). Certainly
the text of these enactments provide no fair warning within

10

the meaning of the ex post facto clause to indicate the
Legislature’s intent to make these credits subject to retro-
active cancellation, even if the State constitutionally could
provide and enforce such notice.

Likewise, the 1992 amendment at issue, which became
effective July 6, 1992, Ch. 92-310, § 37, Laws of Fia.,
says not one word about authorizing the State to retro-
actively cancel lawfully awarded provisional credits. In-
stead, the legislation is wholly silent as to the matter, so
the text again gives no fair warning that retroactive can-
cellation would be permissible under state law, even if the
Legislature constitutionally could do so. See ch. 92-310,
§ 12, Laws of Fla. (codified at § 944.277, Fla. Stat.
(Supp. 1992)).

A thorough examination of the legislative history of
chapter 92-310 also shows that no retroactive effect had
been intended. Not one of the three lengthy staff analyses
conducted by the House Committee on Corrections men-
tions a word about retroactively canceling provisional

credits in the 1992 amendment. Instead, the 1992 amend-

ment to section 944.277 had three exclusive and distinct

purposes :
To clarify the intent of the Legislature, a person who
has ever been convicted as an habitual offender at
any time, and any person who is convicted, or has
ever been convicted, of committing or attempting to
commit kidnapping, burglary, or murder, and the
offense was committed with the intent to commit sex-
ual battery or a sex act was attempted or completed

during commission of the offense, shall not be eligible
for provisional credits.

In addition, the department is authorized to rely on
any document leading to or generated during the
course of the criminal proceedings, including, but not
limited to, any presentence investigation or any in-
formation contained in arrest reports relating to cir-
cumstances of the offense when making provisional
credit eligibility determinations.

11

Fla. H.R. Comm. on Corrections, CS/2d ENG/HB
197-H, 19-H, 131-H, Staff Analysis 23 (July 8, 1992)
(emphasis in original); Fla. H.R. Comm. on Corrections,
CS/HB 197-H, 19-H, 131-H, Staff Analysis 22 (June 3,
1992); Fla. H.R. Comm. on Corrections, HB 197-H,
Staff Analysis 25 (May 29, 1992) [maintained in Series
19, Carton 2382, Florida State Archives, Tallahassee,
Florida]. Mcreover, had the Legislature intended to can-
cel provisional credits for thousands of prisoners, see
footnote 3, infra, certainly the fiscal impact would have
been great. Yet neither the Department of Corrections
nor the Legislature saw such a fiscal impact in the 1992
amendment:

The department [of Corrections] reports that, by
denying provisional credits and control release to the
inmates covered by the bill, it is expected that the
time served in prison will be increased for a relatively
small number of inmates; however, since provisional
release and control release are emergency release
mechanisms, there is no way to determine when and
how many inmates would be affected.

July 8 Staff Analysis at 33; June 3 Staff Analysis at 32;
May 29 Staff Analysis at 35.

Contrast these facts with what the Legislature expressly
put in the law. The statutory exclusion making provisional
credits unavailable to prisoners convicted of murder or
attempted murder affected only those who committed their
crimes on or after January 1, 1990. See ch. 89-100, § 6,
Laws of Fla. (the act creating the murder/attempt ex-
clusion in section 944.277(1)(i) “shall take effect Jan-
uary I, 1990, and shall apply to offenses committed on
or after the effective date”).

The Florida judiciary recognized the prospective nature
of that statute and recognized a constitutional distinction
created by the way in which the Legislature implemented
section 944.277(1)(i). Two months before petitioner
Lynce’s release, a Florida appellate court held that a

12

prisoner incarcerated for a murder committed prior to the
January 1, 1990, effective date of section 944.277(1) (i),
could not be denied provisional credits retroactively.
Dominguez v. State, 17 Fla. L. Weekly D1853 (Fla. Ist
DCA July 29, 1992), revised on rehearing on other
grounds, 606 So. 2d 757 (Fla. Ist DCA 1992). The
Court held that the Florida Supreme Court's prior deci-
sions permitting retroactive denial of provisional credits
under other, preexisting portions of section 944.277, Dug-
ger v. Rodrick, 584 So. 2d 2 (Fla. 1991), cert. denied,
502 U.S. 1037, 112 S. Ct. 886, 116 L. Ed. 2d 790
(1992), and Felk v. Dugger, 589 So. 2d 905 (Fla. 1991),
cert. denied, 504 U.S. 918, 112 S. Ct. 1961, 118 L. Ed.
2d 562 (1992), were not controlling because the 1989
amendment that added section 944.277(1)(i), was pro-
spective. Moreover, the Attorney General of Florida ac-
knowledged that Florida law prior to the 1992 amend-
ment did not provide for retroactive cancellation of law-
fully awarded provisional credits. Op. Att'y Gen. Fla.
92-96 (Dec. 29, 1992) (Appended to Petitioner’s Brief).

Thus, the only “fair warning” provided by Florida law
at the time of petitioner Lynce’s release was that peti-
tioner Lynce and others similarly situated could not, retro-
actively, be denied the benefit of lawfully awarded provi-
sional credits. This was apparent on the face of the
statute and from its history, and was made even more
clear by the Florida judiciary in Dominguez. The Depart-
ment of Corrections recognized this to be the case and
recognized Dominguez as authoritative at the time of peti-
tioner Lynce’s release. See letter of Department of Correc-
tions Secretary Harry K. Singletary to Attorney General
Robert A. Butterworth, (Dec. 30, 1992) (Appended to
Petitioner’s Brief).

Two months after Dominguez was decided, the Depart-
ment of Corrections complied with Dominguez by award-
ing Petitioner Lynce the 1,860 days of provisional credits
that he had been awarded under section 944.277(1) (i)

13

since they became available in 1988, and by releasing
him pursuant to those credits on October 1, 1992. See
Joint Appendix 50. Under these circumstances, the State
cannot make a legitimate claim that it made a “mistake”
when it discharged the petitioner, when in fact it was
following controlling law at the time.

The first time the State of Florida indicated it had
changed its view of Florida law came about on Decem-
ber 29, 1992, 89 days after petitioner Lynce’s release
from custody. On that day, the Attorney General issued
a written opinion to resolve a hot political issue raised
by two elected officials who were concerned about the
impending release of a single prisoner, Donald Glenn
McDougall, into their central Florida community. The
Attorney General opined that McDougall could be kept
behind bars. To accomplish that, he inferred from the
absence of a date of application in the 1992 recodification
of section 944.277(1)(i), that the 1992 amendment
changed the law and opened the door to permit retro-
active cancellation of provisional credits. To reach that
opinion, the Attorney General distinguished Dominguez
and tried to limit it to its facts. Op, Att'y Gen. Fla. 92-96
(Dec. 29, 1992); see also letter of Attorney General
Robert A. Butterworth to Department of Corrections

Secretary Harry K. Singletary, Dec. 31, 199
to Petitioner's Brief). » 1992) (Appended

The Florida Attorney General’s Opinion was not con-
trolling or binding authority under Florida law, e.g. State

v. Family Bank of Hallandale, 623 So. 2d 474. 478
> . (Fla.
1993), and the Supreme Court did not cite it when. in an

1 Arguably, the Attorney General’s Opinion co

uld have been
read to violate bill of attainder and due process clause principles
as applied to McDougall. See Joint Anti-Facist Refugee Com-
mittee v. McGrath, 341 U.S. 123, 71 S. Ct. 624, 95 L. Ed. 817
, 19651) (reversing dismissal of complaints by three organizations
ee that the Attorney Genera! had unconstitutionally in-
c uded them on lists of subversive organizations) ; Lawrence Tribe
American Constitutional Law, 660 (2d ed. 1988).

14

original proceeding decided in a one-paragraph unreported
opinion on April 29, 1993, it denied habeas corpus relief
to an inmate whose provisional credits had been canceled.
Ipnar v. Singletary, 620 So. 2d 761 (Fla. 1993) (table).

Interestingly, the /pnar decision also had no controlling
authority under Florida law. Department of Legal Affairs
v. District Court of Appeal, 434 So. 2d 310, 312 (Fla.

1983) (repudiating the precedential value of unpublished
decisions issued with or without opinions). Accord 11th
Cir. R. 36-2 (unpublished opinions have no controlling
authority). Nonetheless, the State seized upon the un-
published opinion as judicial authorization to rearrest
petitioner Lynce: Four days later, on May 3, 1993, it
issued an Affidavit for Retaking Prisoner (Lynce), and
got a court order fourteen (14) days thereafter to re-
arrest Lynce. See Joint Appendix 51.°

2 The text of the /pnar opinion, maintained in the public records
of the Supreme Court of Florida, said in full:

Petitioner's scheduled release from prison due to provisional
credits was canceled by the Department of Corrections. Under
these circumstances, Petitioner is not entitled to relief. See
Dugger v. Rodrick, 584 So. 2d 2 (Fla. 1991). Accordingly, the
Petition for Writ of Habeas Corpus is denied.

It is so ordered.

3 Petitioner Lynce was not alone. The Department issued war-
rants/orders to reincarcerate 164 inmates whom it had released.
The Department caused 135 freed persons to be returned to cus-
tody. For 18 others, the warrants were ineffective because their
sentences had fully expired while out of custody. Three died be-
fore their warrants could be served. Eight warrants were still
outstanding as of July 9, 1996, including four for individuals
deported or held for deportation and four for individuals whose
whereabouts are unknown. In all, the Department retroactively
canceled provisional credits for 2,789 individuals pursuant to \ts
new-found interpretation of the 1992 amendment.

The same scenario arose in 1993 when the Legislature rescinded
the provisional credits statute altogether, along with administra-
tive gain time. Ch. 93-406, § 32, Laws of Fla. (codified at § 944.278,
Fla. Stat. (1993)). Pursuant to that act, the Department retro-

15

The Supreme Court of Florida finally published an
opinion on the subject more than a year later, on May 19,
1994, denying habeas corpus relief in Griffin v. Single-
tary, 638 So. 2d 500 (Fla. 1994), a case similar in many
respects to the case at bar. The Court held that section
944.277(1){i), as amended in 1992, constitutionally
had been applied retroactively to cancel provisional
credits awarded during Griffin's incarceration, which com-
menced in 1986, the same year he committed his crime.

D. The Retroactive Application Of A Law That Had Not
Changed Was Arbitrary And Unpredictable, In Viola-
tion Of Ex Post Facto/Due Process Principles.

Two compelling conclusions can be reached from these
facts, and both support petitioner’s cause. First, the exec-
utive branch’s decision had no valid basis in Florida law.
The statutory authority it invoked when it canceled peti-
tioner Lynce’s credits did not provide for retroactive can-
cellation of provisional credits, contrary to the opinion
of the Attorney General. This Court recently invoked the
principles of ex post facto clause and due process clause
jurisprudence to say,

As Justice Scalia has demonstrated, the presumption
against retroactive legislation is deeply rooted in our
jurisprudence, and embodies a legal doctrine cen-
turies older than our Republic.
Landgraf v. USI Film Products, 511 U.S. 244, 114 §. Ct.
1483, 128 L. Ed. 2d 229, 252 (1994). That presump-
tion generally applies in the absence of a clear, contrary
statement of intent by the Legislature. See, e.g., id., 128
L. Ed. 2d at 254. Here, however, no clear statement
indicating a contrary legislative intent can be found. At
worst, the 1992 amendment was facially uncertain as to
whether it authorized retroactive cancellation, and its un-

actively canceled provisional credits for 4,155 persons. Letter of
Department of Corrections to Chet Kaufman, July 9, 1996. A copy
is printed in the appendix to this brief.

16

certainty was not revealed until three months after peti-
tioner Lynce’s release. Under these facts, the retroactive
destruction of petitioner Lynce’s liberty epitomizes the
kind of unpredictable and arbitrary state action con-
demned by principles underlying the ex post facto clause.
Cf. California Dep’t of Corrections v. Morales, 115 S. Ct.
1597, 131 L. Ed. 2d 588, 598 (1995) (system reducing
parole eligibility hearings was clear, the procedure was
“carefully tailored” not to allow arbitrary determinations,
and the prisoner in that case certainly had not been
denied a hearing arbitrarily).

The second compelling conclusion is that the State of
Florida is in much the same position as the wrongful
government actors in Bouie v. Columbia, 378 U.S. 347,
84 S. Ct. 1697, 12 L. Ed. 2d 894 (1964), Douglas v.
Buder, 412 U.S. 430, 93 S. Ct. 2199, 37 L. Ed. 2d 52
(1973), and Marks v. United States, 430 U.S. 188, 97
S. Ct. 990, 51 L. Ed. 2d 260 (1977). Because the stat-
ute had not changed in the 1992 amendment, as demon-
strated above, Florida law did not really change until
long after petitioner Lynce had won his freedom on Octo-
ber 1, 1992. The Attorney General first stirred the pot
with his opinion on December 29, 1992; the Florida Su-
preme Court decided Ipnar v. Singletary on April 29,
1993; and the Florida Supreme Court officially proclaimed
the law changed by publishing Griffin v. Singletary on
May 19, 1994. That retroactive expansion of Florida law
certainly could not be foreseen from the Legislature's
silence in its July 1992 recodification of section 944.277.
The State of Florida’s decision to terminate petitioner
Lynce’s liberty under these circumstances flies in the face
of this Court’s ex post facto clause/due process clause
jurisprudence.

The State of Florida should not be permitted to do
what this Court prohibited in other cases. The United
States Constitution is just a shadow of what the Framers
intended if it is read to allow the State to reincarcerate

17

an individual for five years after lawfully releasing him on
the same charge. Denying relief in this case would vio-
late rights “fundamental to our concept of constitutional
liberty.” Marks v. United States, 430 U.S. at 191.

CONCLUSION

For the reasons stated above and in petitioner Lynce’s
brief on the merits, this Court should grant the relief
petitioner seeks and reverse the judgment under review.

Respectfully submitted,

CHET KAUFMAN
Assistant Public Defender
301 South Monroe Street
Suite 401
Tallahassee, Florida 32301
(904) 488-2458
Counsel of Record
on behalf of
Florida Public Defender
Association, Inc.

APPENDIX

la
APPENDIX

Letter of Department of Corrections
to Chet Kaufman, dated July 9, 1996

[Logo]

FLORIDA
DEPARTMENT OF
CORRECTIONS

An Affirmative Action/Equal Opportunity Employer

Governor
LAWTON CHILES

Secretary
HARRY K. SINGLETARY, JR.

2601 Blair Stone Road
Tallahassee, FL 32399-2500

July 9, 1996

Chet Kaufman

Assistant Public Defender

Office of the Public Defender

Leon County Courthouse, Suite 401
Tallahassee, Florida 32301

Re: Kenneth Lynce v. Hamilton Mathis
No. 95-7452, United States Supreme Court

Dear Mr. Kaufman:

As you requested, I am supplying the following informa-
tion relative to the number of offenders affected by the
1992 amendments to section 944.277 effective July 6,

2a

1992, which required retroactive cancellation of over-
crowding (provisional) credits for two groups of offen-
ders formerly eligible for early release because of prison
overcrowding and the number of offenders affected by the
1993 legislation creating section 944.278 which required
the retroactive cancellation of overcrowding credits (both
administrative gaintime under former section 944.276 and
provisional credits under former section 944.277) for all
offenders in custody on the effective date of June 17,
1993.

As I explained to you this week, when the 1992 amend-
ments became effective on July 6, 1992, the department
did not recognize that the amendments to section 944.277
and the reenactment of sections 944.277(1)(h) and
944.277(1)(i) required retroactive cancellation of all
provisional credits for the two groups enumerated in sub-
sections (1)(h) and (1)(i). Accordingly, the department
did not perform the retroactive cancellation on July 6,
1992, for these groups of offenders and a couple hundred
offenders were erroneously released between the effective
date of July 6, 1992, and the issuance of the opinion of
the Attorney General 92-96 in December 1992 in which
the Attorney General pointed out the retroactive nature
of the two subsections. The department immediately
stopped further releases of these groups and subsequently
cancelled provisional credits for 2,789 offenders in those
two offense categories who were still in custody. War-
rants were issued or court orders were entered to return
to custody the offenders in those two offense categories
who were erroneously released after July 6, 1992. The
sentences of these offenders continued to run while erro-
neously released. A total of 164 warrants/orders were
issued. Of those, 135 offenders were returned to custody,
18 offenders completed their sentences while out of cus-
tody, 3 offenders died, and 8 warrants are outstanding (3
of the outstanding warrants are for offenders being held
for deportation, | offender was deported, and the loca-
tions of 4 offenders are unknown).

ee ee

3a

Section 944.278 which became effective the following
year on June 17, 1993, required the cancellation of both

_ administrative gaintime and provisional credits. On the

effective date of the law, 4,155 offenders were in custody
that were affected by the cancellation. Figures for subse-
quent cancellations for offenders returned to custody
since June 17, 1993, for revocation of post-release super-
vision for which overcrowding credits were cancelled are
not available.

I hope this answers the questions that you posed to me
earlier this week.

Sincerely,
/s/ Susan A. Maher

SUSAN A. MAHER
Deputy General Counsel

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0790%3A11. Public record. Not legal advice.