# Petition for Writ of Certiorari — Martinez v. Raske > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0474%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1989 - **Citation:** 493 U.S. 993 ## Text IN THE SUPREME COURT OF THE UNITED STATES October Term, 1989 BOB MARTINEZ, et al., Petitioners, Vv. JEFFREY RASKE, Respondent. ‘ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ROBERT A. BUTTERWORTH ATTORNEY GENERAL OF FLORIDA SUSAN A. MAHER ASSISTANT ATTORNEY GENERAL (Counsel of Record) DEPARTMENT OF LEGAL AFFAIRS The Capitol Sai Tallahassee, Florida 32399-1050 (904) 488-9935 COUNSEL FOR PETITIONERS QUESTIONS PRESENTED 1. Does the Statutory amendment to Section 944.275, Florida Statutes (1983), reducing the number of days of discretionary gaintime available from a potential of 37 days to a potential of 20 days, violates the ex post facto prohibition of the federal constitution as applied to a prisoner who had been convicted of an offense occurring prior to the effective date, where the award of gain time is discretionary and conditioned upon factors other than good behavior and where the underlying purpose of . the statutory provision is administrative rather than penal. 2. Do the prohibitions of the ex post facto clause of the United States Constitu- tion extend to matters of a state's prison administration which utilize gain time awards to accomplish administrative goals. PARTIES TO THE PROCEEDINGS BELOW The following is a list of all parties appearing in the proceedings before the United States Court of Appeals for the Eleventh Circuit who are petitioners or respondents before this Court: Petitioners Bob Martinez, Governor, State of Florida Richard L. Dugger, Secretary, Florida Department of Corrections Respondent Jeffrey Raske, a prisoner in the custody of the Florida Department of Corrections — = TABLE OF CONTENTS PAGE Questions Presented i Parties to the Proceedings Below ii ‘Table of Contents iii Table of Authorities ae iv Opinions Below 2 Jurisidiction 2 Constitutional and Statutory Provisions Involved | ¥ Statement of the Case 3 Reasons for Granting the Writ 12. Conclusion | 27 Certificate of Service | 28 - 444. - TABLE OF AUTHORITIES CASES PAGES Blankenship v. Du er, 521 So.2d 1091 (Fla. 1988) 22 Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798) 14, 15, 25 Dobbert v. Florida, 432 U.S. 282 (1977) 15, 18 Fletcher v. Peck, 10 U.S (6 Cranch) 87 (1810) 15 Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963) 16, 17, 18 Miller v. Florida, 482 U.S. (1987) 15 Portley v. Grossman, 444 U.S. 1311 (1980) 18 Raske v. Martinez, 876 F.2d 1496 (llth Cir. 1989) 9, 10, ll, 21 Weaver v..Graham, 450 U.S. 24 (1981) passim OTHERS Ch. 131, §8, 1983 Fla. Laws 6 Ch. 304, §1, 1978 Fla. Laws 6 -iv- Section 944.275, Florida Statutes Section 944.275(1), Florida Statutes (1979-1981) Section 944.275(2)(a), Florida Statutes (1979-1981) Section 944.275(3)(a), Florida Statutes (1979-1981) Section 944.275(1), Florida Statutes (1983) Section 944.275(4)(a), Florida Statutes (1983) Section 944.275(4)(b), Florida Statutes (1983) Section 944.276, Florida Statutes (1987) Section 944.277, Florida Statutes (1988 Supp.) Supreme Court Rule 20 28 U.S.C. §1254(1) 28 U.S.C. §2101(c) - United States Constitution Article I, Section 9 United States Constitution Article I, Section 10 - V- IN THE SUPREME OURT OF THE UNITED STATES October Term, 1989 BOB MARTINEZ, et al., Petitioners, Vv. JEFFREY RASKE, Respondent. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT Petitioners, Bob Martinez, Governor of Florida, and Richard L. Dugger, Secretary of the Florida Department of Corrections, petition this Court for a writ of certiorari to review a judgment of the United States Court of Appeals for the Eleventh Circuit. OPINIONS BELOW The July 11, 1989, decision of the United States Court of Appeals for the Eleventh Circuit affirming the district court is reported at 876 F.2d 1496 (llth Cir. 1989). (App. A-1.) The opinion and judgment of the United States District Court for the Middle District of Florida is not reported. (App. A-28.) JURISDICTION The decision of the court of appeals was entered on July 11, 1989. This petition has been filed and docketed within the period established by the Supreme Court Rule 20 and 28 U.S.C. 210l(c). This Court has jurisdiction pursuant to 28 U.S.C. 1254(1). CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED The constitutional and statutory provisions involved are: United States Constitution Article I, Section 10 Section 944.275, Florida Statutes (1983) Section 944.275, Florida Statutes (1981) The pertinent text of the foregoing constitutional provisions and statutes is reproduced in the appendix. STATEMENT OF THE CASE The facts pertinent to consideration of this petition appear in the decision of the Circuit court. ~The respondent, Jeffrey Raske, is an inmate in the Florida prison- system, presently serving three concurrent twenty- five year prison sentences imposed by the circuit court of Broward County, Florida, for a series of robberies that occurred in 1982. At the time of Raske's offenses, Florida law provided the following formula for the calculation of gain time: (1) The [Department of Corrections] shall grant’ the following deductions for gain- time on a monthly basis, as earned, from the sentences of every prisoner who has committed no infraction of the rules of the department or of the laws of the state and who has performed in a satisfactory and acceptable manner the work, duties, and tasks assigned, as follows: (a) Three days per month off the first and second years of the sentence; (b) Six days per month off the third and fourth years of the sentence; and (c) Nine days per month off the fifth and all succeeding years of the sentence. ... (2)(b) The department is authorized to grant additional gain-time allowances on a monthly basis, as earned, up to 1 day for each day of productive or institutional labor performed by any prisoner who has committed no infraction of the rules of the department or of the laws of this state and who has accomplished, in a satisfactory and acceptable manner, the work, duties, and tasks assigned. Such gain-time allowances under this section shall be awarded on the basis of diligence of the inmate, the quality and quantity of work performed, and the skill required for performance of the work. (3) (a) An inmate who faithfully performs the assignments given to him in a conscientious manner over and above that which may normally be expected of him, against whom no disciplinary report has been filed within the preceding 6 months, and whose conduct, personal adjustment, and individual effort toward his own rehabilitation show his desire to be a better than average inmate or who diligently participates in an approved course of academic or vocational study may be granted, on an individual basis, from 1 to 6 days per month extra gain-time to be deducted from the term of his sentence. Ch. 304, §1, 1978 Fla. Laws 870, 870-71, codified, as amended, at Fla. Stat. §944.275(1), (2)(a), (3)(a) (1979-1981). In 1983, the Florida legislature amended section 944.275 to provide as follows: (1) The [department] is authorized to grant deductions from sentence in the form of gain-time to encourage satisfactory prisoner behavior, to provide incentive for prisoners to participate in productive activities and to reward prisoners who perform outstanding deeds or services. (4)(a) As a means of encouraging satisfactory behavior, the department shall -grant basic gain-time at the rate of 10 days for each monthy of each sentence imposed on a prisoner. .. . (b) For each month a prisoner works diligently . . . the department may grant up to 20 days of incentive gain-time, which shall be credited and applied monthly. Ch. 131, §8, 1983 Fla. Laws 442, 442-43, codified at Fla. Stat. 944.275(1), (4)(a)- (b) (1983). The 1983 revisions to the gain time statute increased the amount of basic gain time inmates were to be awarded for general good behavior from a three/six/nine day variable rate to ten days per month; the potential incentive gain time available to prisoners, however, decreased from thirty- seven to twenty days per month. The Florida Department of Corrections has applied the method of awarding incentive gain time adopted in 1983 to all inmates, including those convicted prior to the 1983 enectaent . Raske sought a writ of habeas corpus, Claiming that the 1983 statute which altered the amount and calculation of gain time constituted an ex post facto law as applied to prisoners such as himself who were convicted of offenses that occurred prior to the statute's passage. The district court granted the writ. (App. A- 28.) Relying primarily on this Court's decision in Weaver v. Graham, 450 U.S. 24 (1981), the district court found that the 1983 statute substantially altered the consequences attached to a crime already completed by changing’ the quantum of punishment. (App. A-38.) The . district court rejected the Department's argument that the potential for earning’ work (incentive) gain time was speculative and, therefore, did not affect the quantum of punishment which can be assessed at the time a crime is committed. (App. A-40, 41.) The district court further specifically declared that the procedures for awarding work (incentive) gain time were no more discretionary than the procedures for awarding automatic gain time in Weaver v Graham, supra. (App. A-4l, 42.) A panel of the court of appeals affirmed the district court decision. Raske v. Martinez, 876 F.2d 1496 (llth Cir. 1989). (App. A-1l.) The appeals court, like the district court, found the principles announced in Weaver v. Graham, Supra, to be controlling. Raske, 876 F.2d at 1498. (App. A-9.) Relying on dicta in Weaver specifically directed to the nature and purpose of extra gain time, the State of Florida raised several arguments to distinguish between the automatic (basic) gain time addressed in Weaver and the discretionary work (incentive) gain time at issued in Raske. Id. at 1499. (App. A-1l- 21.) Specifically noting that the Weaver MI "9 ~ : court observed that the award of extra gain time is “purely discretionary", Weaver, 450 U.S. at. 35, the State of Florida argued that the award of such gain time is too speculative to substantialiy affect the quantum of punishment which can be assessed at the time a crime is committed and thus cannot satisfy the second prong of the Weaver test. The appeals court conceded that a prisoner may be less likely to earn work (incentive) gain time than automatic (basic) gain time and further that a prisoner who performs his duties only in an adequate manner may indeed be better off under the 1983 act. Raske, 876 F.2d at 1500, 1501. (App. A-19, 23.) Nevertheless, the circuit court determined that even though a prisoner may diligently perform his assigned duties so as to earn the full thirty-seven days previously available, the elimination of the - 10 - opportunity to do so is sufficient to make the 1983 amendments ex post facto as applied to Raske. Id. at 1500. (App. aA- 21-21.) The State of- Florida also contended that wrone underlying purpose of incentive or work gain time is not punitive or penal in nature and, therefore, outside the prohibitions of the ex post facto clause. The appeals court did not address this argument. - ll - REASONS FOR GRANTING THE WRIT The Eleventh Circuit Court of Appeals has decided an important question of federal law which has not been, but should be, settled by this Court. The initial question before the Sant is.» whether the 1983 amendment of Florida Statute 944.275, reducing work or incentive gain time from a potential of 37 days per month to a potental of 20 days, violates the ex post facto prohibition of the federal constitution as applied to a prisoner who had been convicted prior to the effective date, where the award of gain time is discretionary and conditioned upon factors other than good behavior and where the underlying purpose of the statutory provision is administrative rather than penal. However, the Petitioners suggest that the ultimate question before this Court, and the one which should be settled, -12-- is whether the ex post facto prohibition of — the United States Constitution extends to matters of prison administration which are accomplished through the - discretionary award of gaintime. If so, then the ability for Florida (and other states) to effectively administer the burgeoning prison ceili niin will be eroded in that legislative and departmental mechanisms designed to motivate, manage, rehabilitate, Or control the ever-expanding population will be constrained merely because they are predicated upon awards which reduce prison time. The framers of the Constitution considered the ex post facto prohibition so important that it appears twice -- once in Article I, Section 9, forbidding’ the Congress from passing any ex -post facto law, and again in Article I, Section 10, placing the same limitation upon. the - 13- states. Obviously, the framers, in their providence and not far removed from the excesses of tyranny, included the ex post facto clauses as an added precaution to future oppression. However, as noted by Justice Chase in Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798), the seminal case in ex post facto analysis: The prohibition, “that no state shall, pass any ex post facto law," necessarily requires some explanation; for, naked _ and without explanation, it is unintelligible, and means nothing. Justice Chase went on to state what laws he considered to be ex post facto laws, "within the words and the intent of the prohibition": lst. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law