Opposition Brief — Florida v. Lancaster

‘i

EDITOR'S NOTE

THE FOLLOWING PAGES WERE POOR HARD COPY

AT THE TIME OF FILMING. IF AND WHEN A

BETTER COPY CAN BE OBTAINED, A NEW FICHE

WILL BE ISSUED.

} QRIGINAL Supreme Court, U.S.

1 FILED

No. 98-1418 MAR 9 1999

SSSSSSSSSSSSSSSSSSSSSSSSSSsSSSsSesss======== = =3=SS=>>=S====

IN THE CLERK

SUPREME COURT OF THE UNITED STATES

October Term, 1998

STATE OF FLORIDA,

Petitioner,

ANTHONY LANCASTER,

Respondent.

Respondent's Response to

PETITION FOR WRIT OF CERTIORARI

to The Florida Supreme Court

MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS.

Respondent, Anthony Lancaster, asks leave to accept for filing Respondent's Brief

in Opposition to the Petitioner's Writ of Certiorari to the Florida Supreme Court without

prepayment of costs and to proceed in forma pauperis in accordance with Supreme Court

Rule 39, 18 U.S.C. § 3006A(d)(6). The filing of this petition is accompanied by an affidavit

as required by Supreme Court Rule 39. Respondent, Anthony Lancaster, was declared

indigent and the Public Defender’s Office of the Fifteenth Judicial Circuit was appointed to

represent Petitioner on appeal to the Florida District Court of Appeal.

WHEREFORE, Petitioner, Anthony Lancaster, prays for leave to proceed in forma

paupens.

Oc te

ae a Sara a raglan ong to umag awsasosoanmegmmaaemnommammeey

eee

Respectfully submitted,

RICHARD L. JORANDBY

Public Defender

ANTHONY CALVELLO

Assistant Public Defender

Fifteenth Judicial Circuit of Florida

Florida Bar No. 266345

The Criminal Justice Building

421 Third Street, 6th Floor

West Palm Beach, Florida 33401

(561) 355-7600

Attorney for Respondent Anthony Lancaster

em UNITED STATES

Case No. A-739

STATE OF FLORIDA,

Petitioner,

VS.

ANTHONY LANCASTER,

Respondent

MOTION TO PROCEED IN FORMA PAUPERIS

COMES NOW, ____ anruony LANCASTER : SEPRORS EM the above-styled cause and,

pursuant to the provisions of Title 28, United States Code, Section 1915, respectfully moves for leave to proceed in forma pauperis

without prepayment of fees, costs or security given therefor.

Dated: Roc i b, 1385

(J Signature ‘a

AFFIDAVIT IN SUPPORT OF MOTION

TO PROCEED IN FORMA PAUPERIS

I, ___- ANTHONY LANCASTER » being first duly sworn, depose and say that I am the

petitioner in the above-entitled case; that in support of my motion to proceed in forma pauperis without being required to prepay fees, costs

or give security therefor, I state that because of my poverty I am unable to pay the costs of said proceeding or to give security therefor; that!

believe I am entitled to redress; and that thet nature of this action is as follows:

I further swear that the responses which I have made to questions and instructions hereinbelow relatirig to may ability to pzy

the cost of this action are true.

1. Are you presently employed? Answer: 'Z Ss

a. If answer is “yes”, state the amount of your salary or wages per month and give the name and address of your employer.

b. If answer is “no”, state the date of last employment, and the amount of the salary and wages per month which you received.

LY/ 20 MO Aprox Treasetc Coast Cartractinn

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2. Have you received within the past twelve months any income from a business. ST form of self-employment, or in the

form of rent payments interest, dividends, or other source? Answer: K

a. If answer is “yes”, describe each source of income, and state the amount received from each during the past twelve months.

Yes

Do you own any cash or checking or savings account? Answer:

”

a. If answer is “yes”, state the total value of the items owned.

A ASO

4. Do you own any real estate, stocks, bonds, a eae or other valuable property (excluding ordinary household a

and.clothing)? Answer:

a. If answer is “yes”, describe property and state approximate value.

—~

List the persons who are dependent upon you for support and state your relationship tc those persons.

Gr nw. Y Lancactec =. 1.) +e.

1

Alden Lancaster . Sar

I fully understand that a false statement or answer to any questions in this affidavit will sybject me to penalties for perjury.

er see

SUBSCRIBED AND SWORN TO before me this

i. day of. Hari | [99 vA

Bu 4 Anthony han Caster

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BONDED THROUGH

ATLANTIC BONDING €O.. INC.

No. 98-1418

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1998

STATE OF FLORIDA,

Petitioner,

ANTHONY LANCASTER,

Respondent.

AFFIRMATION OF SERVICE

| HEREBY AFFIRM, pursuant to Supreme Court Rule 29.5, that on this 9th day of

April 1999, true copies of the Motion for Leave to Proceed /n Forma Pauperis were mailed

first class in a postage paid envelope to Robert A. Butterworth, Attorney General; Carolyn

M. Snurkowski, Assistant Deputy Attorney General and Charlie McCoy, Assistant Attorney

General. Office of the Attorney General, The Capitol, Tallahassee, Florida 32399-1050,

(850) 487-1963 (for Petitioner), Anthony Lancaster, 374 16th Street SW, Vero Beach,

Florida 32962-6634.

All parties required to be served have been served.

| further certify that the foregoing is true and correct.

Executed on April 9, 1999.

DATED this ee of April 1999.

Respectfully submitted,

RICHARD L. JORANDBY

Public Defender

Lp (eA

NTHONY CALVELLO

Assistant Public Defender

Fifteenth Judicial Circuit of Florida

Florida Bar No. 266345

The Criminal Justice Building

421 Third Street, 6th Floor

West Palm Beach, Florida 33401

(561) 355-7600

Attorney for Respondent Anthony Lancaster

CERTIFICATE OF SERVICE

| HEREBY CERTIFY that a copy the Respondent's Response to Petition for Writ of

Certiorari to the Florida Supreme Court has been furnished to Robert A. Butterworth,

Attorney General; Carolyn M. Snurkowski, Assistant Deputy Attorney General and Charlie

McCoy, Assistant Attorney General, Office of the Attorney General, The Capitol,

Tallahassee, Florida 32399-1050 by U.S. Mail on this 9th day of April 1999.

Cres (4k

ttorney for Réspondent Anthony Lancaster

Tews if FS Wer Siri

No. A-739

-

ices eeneemnstessseleaniligth allt iesdiceaapespennsberseammanennssemaremmcnmmeses

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1999

STATE OF FLORIDA,

Petitioner,

ANTHONY LANCASTER,

Respondent.

Responents Brief in Opposition to the

PETITION FOR WRIT OF CERTIORARI

RICHARD L. JORANDBY

Public Defender

ANTHONY CALVELLO

Assistant Public Defender

Fifteenth Judicial Circuit of Florida

The Criminal Justice Building

421 Third Street, 6th Floor

West Paim Beach, Florida 33401

(561) 355-7600

Attorney for Respondent Anthony Lancaster

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QUESTION PRESENTED

Has the Florida Supreme Courtin the instant cause, State v. Lancaster, 24 Fla. L.

Weekly S30 (Fla. Dec. 24, 1998) correctly applied this Honorable Court's decision in Lynce

v. Mathis, 519 U.S. 433(1997) on remand?[Restated].

TABLE OF CONTENTS

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Tne fae sc cep U bathe ove hiubicapcastceeVetenesssaeves i

SP PUTER GEEE ous s bavi sh eWS Ebb ho Sra Nine ccenevudesdcva access iii

ES 0 oo asc Cain Uae ud gs vb hyd cade bo ee he cuca oes 1

BtAtement Gr tric CASE AND FACTS 2... cece cerca cue cccccewevavcececs 2

TE SOD NOU WOON Eos ove cha bck ue sarc ices ceevnnevwessden 6

i ti Cale etn wa Whee aOW wo 6 SAawii aso ec kb ke eka bios Vesa web es 12

ee ee OE ld do La Fae bea scab hie hea Nees cee shea 12

ii

Poe ea

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TABLE OF AUTHORITIES

CASES PAGE(S)

Britts v. Chiles, 704 So. 2d 1046

PM TONER ee RE Ged cide oi 8 6h RS Melee ew EAD COR eRe Uae eae g

California Dept. Of Corrections v. Morales, 514 U.S. 499,

FUE, ee PT CRUE 635 Rae eid Fe BAG oe he Pe ore kok cas 7

Greenfield v. Scafati, 277 F. Supp. 644 (Mass.1967)

(Three-judge court) summarily affd, 390 U.S. 713,

ee ae IE IE Baw 6 oo a aia 5 0 ed IE ebb ck he ek 10

Lancaster v. Florida, 118 S.Ct. 37

CRETE srr nae ond ie Wak otek bs Ue ieee ec Wadaceuwens 1,4,5

Lancaster v. State, 656 So. 2d 533

CoP SY SID a's sn Line 'S a She. 6 coe SERN OE caw LES eS 2,3

Lynce v. Mathis, §19 U.S. 433

|) RSS EGP ie prt NG oP Rh FMM IAgELPRN bee D Dende y glia iene mad ny passim

Miller v. Florida, 482 U.S. 423, 107 S.Ct. 2446

CRE iar sor ae 1s CT Roc a wR ha ns Fa Ed ee re ek S

Orosz v. Singletary, 655 So. 2d 1112

Pe ek 6ekk 6 oe a eA be i Pn ee WER eR En Wakes 3

State v. Lancaster, 24 Fla. L. Weekly $30

a I OO 6 bal WSU C KG 800k eee AT OREM ee ek is i, 1

State v. Lancaster, 687 So. 2d 1299

CPUs WOES: PcG e a oii BS RN ES EAS aD AS COIN Oils Lo ee 3,4

U.S. v. Meeks, 25 F. 3d 1117

vg Bs Ee Rie Begs Cae a lea yen pape SNe conmene: Aer Tee sats ee Manu yte 11

U.S. v. Paskow, 11 F, 3d 873 >

CE Gals NUN Stine ets a i oo ei be kb ee a da ee ee ee ee ee 11

U.S. v. Reece, 71 F.3d 582

EONS MEER OS. SS 10

Weaver v. Graham, 450 U.S. 24, 101 S.Ct 960 965

te ee U sc ae a pknct pies vascncesseverss 7,9, 10

Williams v. Lee, 33 F.3d 1010

ga a ee Uy you catscncecie 10

UNITED STATES CONSTITUTION

ee eee LLL cy wh eh y hdie wie bee eee AO passim

ec Ge Ce suk etde eee be eee ae etiee ee passim

FLORIDA STATUTES

IG SRR a REGU SOA aN wk ON 3

eee EL ceed Vales eho e kee bee Deane Rene 5

MAR 11 ’99 @2:42PMm

OPINIONS BELOW

The Opinion of the Florida Supreme Court in State v. Lancaster, 24 Fig. L. Weekly

S30 (Fia. Dec. Dec. 24,1989). See Appendix.

The Opinion of the Florida Supreme Court in Lancaster y. State, 887 So. 24 1299

(Fla, 1997) was vacated by this Honorable Court on the authority of Lynce v, Mathis, 519

U.S. 433 (1997). See Lancaster y. Florida, 118 S.Ct. 37 (1997).

CONSTITUTIONAL PROVISION INVOLVED

Ex Post Facto Clause, Article |, Section 10 United States Constitution: No state

Shall... pass any bill of attainder, ex Post facto law... .

MAR 11 ’99 @2:43PM

P.8

STATEMENT OF THE CASE AND FACTS

Respondent, Anthony Lancaster, was charged by information filed in the Nineteenth

Judicial Circuit, in and for Indian River County, Florida, with second degree murder. This

Offense was alleged to have occurred on May 3, 1987.

Respondent was sentenced to seventeen (17) years in prison to be followed by ten

(10) years probation. He was subsequently releas ed from prison after completion of the

incarceration portion of his “split-sentence”. He commenced serving the probationary

portion of his “split sentence” on July 7, 1993. On August 3, 1994, Respondent was found

guilty of violating his probation and said probation was revoked by the tria judge.

The trial judge sentenced Mr. Lancaster to thirty (30) years in prison with “credit for

all time [he] served previously in the Department of Corrections.” See Lancaster v. State,

656 So. 2d 533, 534 (Fla. 4th DCA 1985), The written sentence order signed by the

Sentencing judge provided that Respondent was sentenced to thirty (30) years in prison

with credit for 344 days “county jail credit served between date of arrest as a violator and

date of resentencing. The Department of Corrections shall apply original jail credit

awarded and shall compute and apply credit for time served and unforfeited gain-time

awarded during prior service of case number (87-0035 1]." Id, at 534.

On appeal to the Florida Fourth District Court of Appeal, Respondent Lancaster

argued that the trial judge erred in failing to award Respondent the full seventeen (17)

years in prison as credit for time served against the thirty (30) year sentence imposed

upon Respondent for violating his probation. As Previously noted, Respondent had

rw 44 we baa seescciiaRttn tal teat

originally been sentenced to seventeen (17) years in prison to be followed by a term of

probation for this same offense.

The Fourth Districtin a written opinion, Lancaster v. State 656 So. 2d 533 (Fla. 4th

DCA 1995) initially held that Respondent's thirty (30) year sentence which exceeded the

applicable Florida guidelines range had to be reduced on remand to twenty seven (27)

years in prison. /d. at 534.

As to the proper credit for “time served” to be awarded, the Fourth D istrict ruled on

the basis of the ex post facto clause and a Florida Supreme Court decision, Orosz v.

Singletary, 655 So. 2d 1112 (Fla. 1995), that “if upon remand it i determined that

defendant completed his original sentence prior to 1993, when the legislature enacted

section 944.278 and retroactively canceled ail awards of gain time and provisional

credits defendant should properly be credited not only with earned gain time but with

administrative gain time and provisional credits.” /d. at 535.[Emphasis Supplied]. The

Fourth District held:

To retroactively cancel administrativegain time and provisional

credits would unconstitutionally violate a defendant's

constitutional rights against ex post facto laws and bills of Ey rens YER!

attainder.

Id. at 534-535.

The Florida Supreme Court in a written opinion, State v. Lancaster, 687 So. 2d

1299 (Fla. 1997), reversed the decision of the Fourth District Court of Appeal and held:

“Administrative gain time and provisional credit statutes were

not enacted for the benefit of prisoners; those statutes were

enacted merely to afford the Department a procedure to

alleviate prison overcrowding. We further concluded in

Calemia that the retroactive cance'lation of administrative gain

time and provisional credits does not run afoul of ex post facto

proscriptions. Because the unique circumstances presented

in Orosz are not applicable to Lancaster and because

Lancaster has no vested interest in any previously awarded

administrative gain time or provisional credits, we conclude

that Lancaster is not entitled to credit for any such time

awarded during the incarcerative portion of his initial sentence.

Accordingly, we quash the district court’s decision to the extent

it holds that all inmates who committed an offense before

October 1, 1989, and who complete their sentences prior to

the 1993 enactment of section 944.278 have a vested right in

previously awarded administrative gain time and provisional

credits, and we remand this case for further consideration.”

Id. at $53.

On February 19, 1997, this Court issued its decisionin Lynce v. Mathis, 519 U.S.

433, 117 S.Ct. 891 (1997). This Court in Lynce held that the retroactive cancellation of

administrative and provisional credits ewarded to inmates violates the ex post facto

clause of the United States Constitution. Lynce, 117 S.Ct. at 897-898.

Respondent Lancaster filed a writ of certiorari in this Court which was granted and

this case was remanded to this Honorable Court for further consideration in light of the

Lynce decision. Lancaster v. Florida, -U.S.-, 118 S.Ct. 37, 138 L. Ed 2d 5 (1997).

The Florida Supreme Court in a written opinion on remand from this Court‘ held

that on the authority of Lynce v. Mathis, 519 U.S. 433, 117 S.Ct, 891(1997), that the State

This Court granted Petitioner Anthony Lancaster's petition for writ of certiorari and

vacated the Florida Supreme Court’s decisicn in State v. Lancaster, 687 So. 2d 1299(Fla. 1997)

and remanded this cause “to the Supreme Court of Florida for further consideration in light of

Lynce v. Mathis, 519 U.S. —--, 117 S.Ct. 891, 137 L.Ed.2d 63 (1997)” Lancasterv. State of Florida

118 $.Ct. 37 (Mem)(1998)

i

—————— eee

ee ee “— —— i ~S

of Florida in conformity with the Ex Post Facto Clause of the United States Constitution’

“cannot cancel or forfeit Lancaster's Provisional Credits or his Administrative Gain Ti me.”

ld. The Florida Supreme Court explained:

In the present case, as in Lynce's case at the time of

Lancaster's offense overcrowding gain time had already been

provided for by statute. See S 944.558, Fla. Stat. (Supp.1986)

(Emergency Gain Time); S 944.276, Fla. Stat.

(1987)(Administrative Gain Time), Accordingly, Lancaster

could have contemplated receiving overcrowding credits at the

time of his offense. Furthermore, Lancaster did receive these

credits and was actually released by way of the

above-mentioned statutes. Furthermore, when Lancaster

was released on prcokaticn, the 1993 Safe Streets Initiative

had not been enacted yet. Thus, akin to the situation with

Lynce, Lancaster's "hope" of receiving overcrowding gain time

had become a reality.

As mentioned above, the Safe Streets Initiative was enacted

in 1993, long after Lancaster's underlying offense an

approximately two years after his release on probation. If the

State were to now apply that later-enacted law to Lancaster

and cancel his over-crowding gain time, the effect of that law

would be to retroactively take away something to which

Lancaster had an expectation at the time of his offense,

actually received during his incarceration, and actually

retained after revocation or must now be awarded because the

1988 forfeiture provision, section 944.28(1), may not be

applied to him (as discussed above). We find that the

application of the Safe Streets Initiative to Lancaster now

would result in the taking of something which was certainly not

speculative. Accordingly, we conclude that under the analysis

of Lynce, the State cannot apply section 944.278 (the Safe

Streets Initiative) to Lancaster to cance! his Administrative

Gain Time or Provisional Credits without violating the Ex Post

Facto Clause.

ld. at S 31-32.[Emphasis Added]. .

: Article |, section 10 Unites States Constitution.

§

Res £44 227° Wee om '*

REASONS FOR DENYING THE WRIT

This Honorable Court in Lynce v. Mathis, supra, held that the retroactive

cancellation of administrative and provisional credits awarded to inmates violates the

ex post facto clause of the United States Constitution. This Court initially noted:

In this case the operation of the 1992 statute to effect the

cancellation of overcrowding credits and the consequent

reincarceration of petitioner was clearly retrospective. Tne

narrow issue that we must decide is thus whether those

consequences disadvantaged petitioner by increasing his

punishment.

* * w 7

According to petitioner, although this case invoives

overcrowding credits, it is essentially like Weaver because the

issuance of these credits was dependent on an inmate's good

conduct. Respondents on the otherhand submit that Weaver

is not controlling because it was the overcrowded condition of

the prison system, rather than the character of the prisoner's

conduct, that gave rise to the award. in our view, both of these

submissions place undue emphasis on the legislature's

subjective intent in granting the credits rather than on the

consequences of their revocation. In arriving at our holding in

Weaver, we relied not on the subjective motivation of the

legislature in enacting the gain-time credits, but rather on

whether objectively the new statute "lengthened the period that

someone in petitioner's position must spend in prison. “ id., at

33.

Similarly, in this case, the fact that the generous gain-time

provisions in Forida's 1983 statute were motivated more by

the interest in avoiding over crowding than by a desire to

reward good behavicr, is net relevant to the essentie!

inquiry demanded by the Ex Post Facto Clause: whether the

cancellationof 1,860 days of accumulated provisional credits

had the effect of lengthening petitioner's period of

incarceration.

MAR 13-°99 @2:4aPM P.13

coe

Id. at 896.

Further, this Court made clear that they did not imply in California Dept. Of

Corrections v. Morales, 514 U.S. 499, 115 S.Ct. 1997 (1995) “that the constitutionality of

retroactive changes in the quantum of punishment depended on the purpose behind the

parole sentencing system.” This Court explained that in Lynce unlike “Morales, there is

no evidence that the legislature's change in the sentencing scheme was merely to save

time or money. Rather, it is quite obvious that the retrospective change was intended to

prevent the early release of prisoners convicted of murder-related offenses who had

accumulated overcrowding credits. As we recognized in Weaver, retroactive alteration of

parole or early release provisions, like the retroactive application of provisions that govern

initial sentencing, implicates the Ex Post Facto Clause because such credits are "one

determinant of petitioner's prison term... and... [the petitioner's] effective sentence is

altered once this determinant is changed.” /d. at 897-898.

The Florida Supreme Court correctly applied this Court's Lynce decision to

Respondent's cause on remand. The Florida Supreme Court held that on the authority

of Lynce v. Mathis, supra, that the State of Florida in conformity with the Ex Post Facto

Clause of the United States Constitution * “cannot cancel or forfeit Lancaster's

Provisional Credits or his Administrative Gain Time.” /d, at $32. The Florida Supreme

Court explained:

In the present case, as in Lynce's case at the time of

Lancaster's offense overcrowding gain time had already been

> Article I, secticn i0 Unites States Constituticn.

7

Mex 11 ‘So We 4aorn

provided for by statute. See S 944.598, Fla. Stat. (Supp. 1986)

(Emergency Gain Time); $944.276, Fla. Stat.

(1987)(Administrative Gain Time). Accordingly, Lancaster

could have contemplated receiving overcrowding credits at the

time of his offense. Furthermore, Lancaster did receive these

credits and was actually released by way of the

above-mentioned statutes. Furthermore, when Lancaster

was released on probation, the 1993 Safe Streets Initiative

had not been enacted yet. Thus, akin to the situation with

Lynce, Lancaster's "hope” of receiving overcrowding gain time

had become a reality.

As mentioned above, the Safe Streets Initiative was enacted

in 1993, long after Lancaster's underlying offense an

approximately two years after his release on probation. If the

State were to now apply that later-enacted law to Lancaster

and cancel his over- crowding gain time, the effect of that !aw

would be to retroactively take away something to which

Lancaster had an expectation at the time of his offense,

actually received during his incarceration, and actually retained

after revocation or must now be awarded because the 1989

forfeiture provision, section 944.28(1), may not be applied to

him (as discussed above). We find that the application of the

Safe Streets Initiative to Lancaster now would result in the

taking of something which was certainly not speculative.

Accordingly, we conclude that under the analysis of Lynce, the

State cannot apply section 944.278 (the Safe Streets Initiative)

to Lancaster to cancel his Administrative Gain Time or

Provisional Credits without violating the Ex Post Facto Clause.

ld. at S$ 31-32.[Emphasis Added].

Petitioner argues in its petition that somehow the State can refuse to recognize,

award, or credit, the vested overcrowding credit already awarded and vested in

Respondent, Mr. Lancaster, in July, 1993 for subsequent conduct in 1994 the State

deems to be “failure to abide by the term of his probation” (Petition page 8) or “did

something unlawful, by violating probation, after the 1993 statute took effect’ (Petition,

page 16) even though no Florida statute allowed the forfeiture of gain time crecits at the

8

————

ee rm

time Respondent's crime was committed (1987) the only relevant date for ex post facto

analysis.

First, this Honorable Court has made clear for ex post facto purposes it is the law

at the time the criminal offense was committed that controls. See Weaver v. Graham,

450 U.S. 24, 30, 101 S.Ct. 960 965(1981); Millerv. Florida, 482 U.S. 423, 430, 107 S.Ct.

2446 (1887). The law applicable at the time of a subsequent revocation of probation

would be irrelevant for ex post facto considerations. Further, Respondent committed

his offense prior to the enactment in 1989 of a Florida Statute, Section 944.28(1),

Florida Statutes (1989) which authorized the forfeiture of gain time seamed for a violation

of probation.

Second, Petitioners argument that subsequent bad conduct can overcome the

ex post facto clause was rejected by the Florida Supreme Court citing Lynce in &ritts v.

Chiles, 704 So. 2d 1046, 1047 (Fla. 1997):

The department [of Corrections] argues that application of the

new statute and rule to Britt do not violate the ex post facto

clause of the federal or Florida constitutions because they

alter penalties associated with in-prison misconduct and relate

to penalties that are directed solely to the new conduct.

Further, the department contends that, because sanctions for

possible future prison misconduct do not constitute a

"significant" factor for either the trial judge or defendant with

regard to plea bargains or calculation of the sentence imposed,

the ex post facto clause is not implicated. The department's

arguments are essentially the same arguments it made

recently in Lynce v. Mathis, 519 U.S. 433, 117 S.Ct. 891, 137

L.Ed.2d 63 (1997); that is, that changes relating to future

events (in this case future misconduct), do not constitute a

"significant factor” for either the trial judge or defendant at the

time of sentencing. Rather, the department argues that

disciplinary confinement and forfeiture of gain-time or the right

9

to earn gain-time are merely managementtools used to control

and modify improper behavior. Further, the departmentargues

that section 944.281 is merely a further refinement of section

944.28. Under the United States Supreme Court decision in

Lynce, we are compelled to conclude that both of these

arguments must fail.

Id. at 1048.

More importantly this argument was also rejected in a case cited with approval by

this Court in Weaver v. Graham, supra, Greenfield yv. Scafati, 277 F. Supp. 644

(Mass.1967)(Three-judge court) summarily affd, 390 U.S. 713, 88 S.Ct. 1409 (1968),

wherein the three (3) judge panel held that the application of Massachusetts statute

forbidding a prisoner from earning good conduct deductions for the first six months after

his reincarceration following violation of parole of prisoner who had been sentenced for

crime before enactment thereof and who was paroled after its enactment would be a

violation of constitutional prohibition against ex post facto laws. Greenfield, 277 F.Supp.at

644,

The Greenfield decision has been acknowledged as a United States Supreme

Court precedent. See Williams v. Lee, 33 F.3d 1010(8th Cir.1994). The Eight Circuit in

Williams held that the revocation of defendant's accumulated good-time credits upon his

violation of parole, pursuant to authority of legisistion enacted after the defendant

netitioner had committed offense that resulted in his conviction and sentence but before

he had been released on parole, was an ex post facto violation. Williams, 33 F3d at 10

And finally, Petitioner citing U.S. v. Reece, 71 F.3d 582 (6th Cir. 1995) argues that

the Sixth Circuit Court of Appeals has “recognized the critical distinction between laws

10

which change the penalty imposed for the original offense as opposed to laws which

change the penalties for new behavior which results in the revocation of post-release

supervision” (Petition, page17 n 12). However Respondent notes that this type argument

has been rejected by the Ninth Circuitin U.S. v. Paskow, 11 F. 3d 873(Sth Cir. 1993), and

the Second Circuit in U.S. v. Meeks, 25 F, 3d 1117(2d Cir. 1964).

The Florida Supreme Court correctly applied this Court's decision in Lynce v.

Mathis, supra, in the instant cause and found an ex post facto violation existed in this

situation. Hence, this Honorable Court should DENY Petitioner State of Florida's Petition

‘

For Writ Of Certiorari.

11

CONCLUSION

Wherefore, for the above reasons, the Writ of Certiorari should be denied.

Respectfully submitted,

RICHARD L. JORANDBY

Public Defender

Neth (Lett.

ie ens

Assistant Public Defender

Fifteenth Judicial Circuit of Florida

Florida Bar # 266345

The Criminal Justice Building

421 Third Street, 6” Floor

West Palm Beach, Florida 33401

(407) 355-7600

Attorney for Anthony avientter

CERTIFICATE OF SERVICE

| HEREBY CERTIFY that a copy hereof has been furnished by U.S. Mail to Carolyn

M. Snurkowski, Assistant Deputy Attorney General, Office of the Attorney General, The

Capitol, Tallahassee, Florida 32399-1080 this 9th day of March 1999.

ones Anthony Lancaster

12

APPENDIX

MAR 11 ’°99 2:47PM

24 Fla. L. Weekly 330

PREME COURT OF FLORIDA

““someeiling goverumena: interes:

Criminal !a»—Habeas corpus—Gsin time—Ex post facto prin-

ciples apply to overcrowding credits—Stare has statutory authori-

ty to forfeit administrazive gain time or —— credits upon

revocation of prooation. but only for offenses committed on or

afer October 1. 1989, the effective date of amendments providing

for such forfeicures—Section 943.278, the “Safe Streets Initia-

tive.” cannot be used to cancel gain time of inmates who were

released on supervision before enaccment of stature

STATE OF FLORIDA. Pensioner. vs. ANTHONY LANCASTER. Respondes:.

Susrem* Cautt of Florida. Case No. $6.312, December 2¢. 1998. Application ior

Review of the Decision of che Diss: Coum of Appeal - Direc: Conflic: of

Decisions. 4c Discier - Case No, 94-247! (Indian River County). Counsel: Roden

A. Butte~worh. Atormey General. Celia Terenzio. Buresu Crue? Assiscnt

Attorney Genert! and Sarah 3. Mayer. Assisam Acomey General. West Paim

Besch. for Peucencr. Richard L. Jorancby, Public Sefencer anc Anticny

ello. Agmscan: Pusuc Defender. Fifteenth Judicsal Circuit, West Paim Bessa,

for Respondent.

(OVERTON, J.) The United States Supreme Court vacated our

decision in Stare v. Lancaster, 687 So. 24 1299 (Fla. 1997), anc

remanded the case for further consideration in light of its decision in

Lynce v. Mathis, $19 U.S. 433 (1997); See Lancaster v. Fiorida,

118 S. Cx. 37 (1997). This is another case involving the application

of ex post facto principles toa ry see chang? in the gain time

statutes. Lo our prior opinion we found there was no ex post facto

violation and that the legislarure could constitutionally make a

disadv _ Tetroactive change in Administrative Gain Time

because overcrowding gain time was designed to alleviate unpre-

dictable prison overcrowding. As explained in more derail below,

we find that the United States Supreme Cour decision in Lynce

mandates a holding that ex post facto principles do apply to over-

crowding credits. In this opinion we approve in part and quash in

the E District Court of A’ s decision inLancaster v.

. 656 So. 24 533 (Fla. 4th DCA 1995). We further instruct the

State co apply the principles a in this decision to all similarly

situated inmates. We note this case is distinguishable from

Meola v. Department of Corrections, Nos. 89.982, 90.148 &

90,241 (Fla. Dec. 24, 1998) (24 Fla. L. Weekly Sz . and Thomas

v. Singletary, Nos. 90,128, 90,188 (Fla. Dec. 24, 1998) [24 Fla. L.

Weeki $26], in which we are denying relief. Meola and Thomas, as

well as another gain time case. Gomez v. Singletary. Nos. 90.642,

90,654 90.655, 90,759 & 90,829 (Fla. Dec. 24, 1998) (24 Fla. L.

Weekly S35) (granting relief) are being released simultancously

with thus case.’ At the outset. it must D¢ reco that neither the

jegislaure. the attoraey genecal, nor this Court has been able to

convince the United Staces Supreme Cour: that the Ex Post Facto

Clause in the United States Constitution does cot apply to gain ime

starures. In 1979, we held in accordance with the theory and

argument of the Attorney General that gain time starutes were a

matter of legislative grace. See Harris v. Wainright. 376 So, 24 855

(Fla. 1979), Ac approximately the same time, we deniec another

ition relying on Harris. See Weaver v. Graham. 376 So. 24 855

Fla. 1979). Oncertiorari to the United States Supreme Court, that

Court disagreed and reversed our judgment in Weever ¥. Graham,

450 U.S. 241981), The Supreme Court found that a legislative act

changing the gain ms statutes enac:ec after the commission of a

criminal act could not constitutionally be used to extend a defen-

dant’s sentence. /d. at 968. More recently, in 1996. we again

accepted che State's view that the cancellation of gain time given

inmates for he purpose of relieving prison overcvowding did nor

violate ex post faczo principles because overcrowding ain time was

not ‘eared.’ Dut rather. was awarded solely for administrative

purposes. and ‘herefore an inmate nad no vested right in retaimung

such gain time. See Calamic v. Sing/lerarv. 686 So. 24 1337 (Fla.

1996). Again that view has deen rejecte¢ anc our opinions in

Calamia 2nd this case nave been wacared by the United States

Supreme Cour. See Caiamia\. Singistary. | 17S. Cz. 1309 (1997)

mg vacated pursuan: '0...ce), manccie sonfirmed to, 9+

©. 20 733 (Bia, 1907) (relief granted on remand), Lancaster v.

Florida, 118 S. Ct. a 37

As noted dy the shart in the attached appendix. there Save been

muitipie siatuies providing for vslies oi prison overcrowding which.

together with che Unitec States Supreme Court cecisions. have

Lancaster’, Stare. 636 So. 24533 (Fla. 4th DCA 1995), quashed,

caused major administrative probiems for :he Dessmmem of

Correszions is calculating 2 constitusiens: ce.ease date for the

inmates in their custody. Gives she Gecisions 9: ihe Vaites States

Susreme Cours, the key date for Ceterminsios of on .amicte’s pain

time entitiemen: is the date of the cr:misaj offense.

Lancasier: Faczcal anc

1994, Lancaste: was then reseniencec. Al that tims. Lansastes was

en credit for his previously awarded incentive and dasic gaa dime

¢ nis offense occurred before October !, 1989. the effecuve

date of the amendment to the gain (ime forie.cure siariss providing

for forfeiture of al) gain time upon the revocation of probation,

community control or Provisional Release). See §§ 94=.28/1),

$48.06(6), Fla. Star. (1989): Stare». Green. $67 So. 24 925 (File.

1989)(concemning the need for statutory authority for gain time

_— modified, Dowdy v. Singleiary, 70+ So. 2¢ 1052 (Fiz.

The significart fac: for this case, however, is that Lancaster was

rpy am Ate dor his previously awarded overcrowding gain time

(A ve Gain Time and Provisional Credits). He was nor

ven credit because, in accordance with our decision in Tipp v.

are, 622 So. 24941, 9420.2 (Fla. 1993), overcrowding eain ime

was not included under the general rubric of ‘‘gain ime " which an

inmare was entitled to under our prier opinion in Stare v. Green, 547

So. 2d 925 (Fla. 1989). These decisions were renderec prior to the

United States Supreme Court decision inLynce.

The Fourth District Court in its appeal of chis case held that

Lancaster had a vested right in the benefits of -he Administrative

Gain Time starute which was in effec: at the time of ths offease.

687 So. 2d 1299 (Fia.), vacated, 1185. Cr. 37 (1997). Cn review of

that decision. we found conflict? between the Fourth Distric:’s

decision ia Lancaszer and our decision in Orosz v. Single, 655

So. 2d 1112 (Fia. 1995), superseded by 693 So. 2d 538 (Fla.

1997)(an rehearing). We quashed the Fourth Discric:'s decision

explaining that it had misinterpreted our decision in Oros: and the

bo in several other cases. See Lancaster, 687 So, 2d at 1300;

see also Art. I, § 10, Fla. Const.; U.S. Const, art. 1, § 10. We

clarified that our holding in Orosz was narrow and only stood for the

proposition that for a certain interval of time. the State lost its

statutory authority to combine consecutive sentences into a siay'e

term (or overall seatence) for the purpose of awarding or forfeiting

dime. Lancaster. 687 So. 2d at 1299. We further indicatec that

ros only applied to an inmate who: (1) commuted an offense

during the interval berween July 1. 1978. and June 16, 1982: (=) was

in service of a sentence at the time of the offense: (3) was given 4

sentence to run consecutively to the sentence for the previous

offense: and (4) had completed the sentence for the previous offense

before June 17, 1993. We also reaffirmed our position that over-

crowding gain time was mot subject tc ihe Ex Post Facto Clause.

citing to our decision in Calamic v. Singletary, 686 So. 2¢ i337

(Fla. 1996). See also Lancasrer. 687 So. 2c at 1299-1300.

tis clear that our previous opinion in this case consisted of two

parts. The first part clarified the holding s Oros: and the second part

reaffirmed our orignal decision ia Csiamia. Our opinion in Orosz

was 20¢ dased on ex pos: faczo orincipies. but rather on stetutes

concerning the appropriate calcuiction of consecutive sentences. It

is imporcant to emphasize that the clarification of Oros: in our

original Lencaszer opinion is unaffected by this decision. Furnez.

we expressly reaffirm chat clarificatios.

As noted. the second part of our decision inLancaster held shat

there was AO constitutional violation when inmates were 10} given

credit for the Administrative Gain Time anc Provisional Credits

awardes during the incarcerative portion of their tniual sentences

(before their probation. revocation: Decause such overcrowC.ag sun

time was net sudtec: to the Ex Pos: Facto Ciause. That 3sm ofour

prior opinion is clearly affecred Oy Lvnce. as set Somh cescw.

(€

"99 G2: 48PM

sUPREME COURT OF FLORIDA

P22

24 Fia. L. Weekiv S31

Application of Lyace to Lancaster

Three starizes were enacted after che commission of Lancasiez’s

ecimina! oMense which couid be asserted 2s aiegal basis cc cancs!

Lancasier’s overcrowding gain time. The first two were 1989

amendments co sections 948.06 and 942.58 (1), See § 944.281);

928.066), Fia. Stet. (1989). They addec ssvocaion of probatios,

sormmunity control, and provisional release to the sircussstances

ermiting gain dme forteiture. Id. The third statute was seczion

5.278. Piorida Statutes (1993), which was par: of the act know as

the ‘* Safe Screess Laitiative '* enaczed on June 17, 1993. It canceled

credits for uncoates in custody or upon their return to Custody.

The State assests that when Lancaster ‘was rezurned to prison in

1994, che State did nor appiv section 944.278 (the Sare Streets

Initiative) to Lancaster to cance! his overcrowding gain ume desause

before Lancas:er was returned to prison, i.c., af resentencing,

Lancaster bac alreadv been denied credit for nis oversrowding gain

time. Therefore, the Stare maintains that there were no overcrowd-

ing credits to cancel under secuon 944.278. The State aileges.

however, that overcrowding gain time is sril/ distinguishable ‘rom

‘*reguiar’’* (basic and incennve) gain time and thar although there is

no viable statutory authority for its forfeiture under Green, the State

does not need any statutory authority to deny credit for overcrowd-

ing gain time. The State maintains that overcrowding gain time is

distinguisnabie because: (1) this Court stated in Bowles v.

Singlerary, 698 So. 2d 1201 (Fla. 1997), that Bowles’ Control

Release credits (another type of overcrowding gain time) nad been

‘*used’’ to attain early release and had not besn cancelled bv any

subsecuent legislation, and (2) that overcrowding gain ume is not

eé ears ed B 9

We reject the contention that there is such a distinction. First, we

note that Like other of gain time, the Scate must have scatutory

authority to forfext overcrowding foe time y my supervision

revocation. See generally State v. Green, 547 So. 2d 925 (Fla.

1989). We find. fowever, that in some cases, the State ——

statutory authority to forfeit overcrowding gain time. ion

$44 .28(1) states that ‘‘if the . .. probation . . . granted to (the

risoner] is revoked, the armment may, withour notice or

ing, declare a forfeiture of ai! gain-time earned according to the

rovisions of law by such prisoner prior to . . . his release.’”

Emphasis added.) Section 944.06(6) states thar ‘whenever

probation . . . is revoked, the offender, by reason of his misconduct.

may be deemed to have forfeited al! gain-tirae."’ (Emphasis added.)’

It appears that the Stare believes that neither of chose sections

includes Provisional Credits or Admunistrative Gain Time. We

believe, however, thar sections 944.28(1) and 948 .06(6) do provide

the State with such authority but thev can only be invoked for

inmates whose mans offenses were committed on or after

October |. 1989 (the effective date of the amendments providing for

such forfeirures), Lancaster's original offense was commuted

before that date and thus the State cannot forfeit his Provisional

redits or Adminisrrative Gain Time under those statutes.

We further reject the argument that Lancaster's overcrowding

gain time has already been cancejes or may now be cancsied

a to section 944,276. Florida Scarutes (1993(ihe Safe Stree

icdatrve). We expressly hold thar the application of that section to

Lancaster would violate ex post facto ornciples.

As mentioned above. the Safe Strees Initiative was enacted in

1993. It canceled all Administrative Gain Time and Provisional

Credits for all inmates in custody. The a¢: did notcancsi such crecits

for releasees unless and until they were retuned to custody. Section

944.278 provides, in pertinent part:

All awards of administranive gain-time under 3. 9dd.°76 and

provistonal credits under s. 944.277 cre hereby canceled for all

inmates serving a sentence or combines sentences in ine custody of

the deparcnexs. or serving a state sentence in the custody of another

jurisdiction. Release dates of all inmates with | or more days of such

awards shall be extended by the length of time ¢qual to the sumber

of days of adminiscauve gain-time an¢ provisional credits which

were canceled. Jnmares who are out of custody dus :o an escape or

a release on bond. or whese postrelease supervision :s revoked on or

after the effective dace of this acz, shoil have all administranve

gain-rime urd provisional credits corceled when the inmate's

release date is reestablished upon returr :o custoc’'y Offenders who

, ‘ Br weunce: provisional release supervision as of the e*Tesuve date of

this section shall be subdjec: to the terms and conditions estzbiishec

atthe ime of ss!ease unnl such offenders have deen discharged from

supervision. Offenders who have warrents ousstandiag Sase< on

violation of supervision as of the 2efective cata of chis section. or

who vidiats terms Of supervision sudsequen: io enaccment of hi

section. shall be terminates ctom supervision anc returasc :o

custody. All provisional crecits shal. 5¢ canceiec when an of-

fender s tentacive reisase dace is reescabiished.

§ 942.278. Fla. Scar. (1993) (ermphasis added). We conclude thar

both che first emphasized porcion of section 9—=.278 providing for

the cancelation of the awards for ’'all inmares serving c sentence or

combined sentences in the custody of the deparzment.’* and che

second emphas:zed portion providing for the canceliation of credits

Specifically direct2s at releasees wouid techniczily cover Lancas-

ter’s situation.

The State argues that the portion of the Safe Streezs Initiative

conceming the cancsilatics of credits specifccih direcsec 2t

relecsees (the second emphasized seczion above: would be const:tu-

tional eves ifit were applied to inmates whose original offenses were

comumuited prior to enacrment. s0 long as rhe misconduc: necsssitat-

ing the revocation of supervision was commined after the enacument

section 944.278. The State argues that there is a critical distinc-

tion berween laws chat change the penalty for the original offense

and laws that change penalties fornew denavier, which results in the

revocation of post-release supervigion.

State asserzs that the circumstances surrounding the loss of

Lancaster's overcrowding gain time were factually ditferent from

those surrounding Lynce’scase. It argues that while Lyncs commit-

ted no violation of any terms of reiease, Lancaster. on the other

band, violared the terms of his release. See Lynce v, Mathis. 5i9

U.S. at 436. In other words, it is asserted that Lyncs’s case con-

cemed a cancellation of overcrowding credits without anv subse-

quent misbehavior on Lynce’s part while Lancaster’s case con-

cerned a forfeirure of overcrowding credits due to the revocation of

bation caused by Lancaster’s subsequent misbehavior. We sore.

owever, that Lancaster had already been released on probation Sv

the time the Safe Streets Initiative was enacted. Furthermore. we

have already rejected the ‘‘subsequent or furure miscondus:"’

argument in our recent decision in Bri v. Chiles, 704 So. 24 1046.

1047 (Fla. 1997). In chat case, the State argued that there was no Sx

post facto violation when it retroactively applied a later-enac:ed

statute and ruje which provided for » mandatory disciplinary

punishmen: consisting of up to a six-month pesiod of time in whicn

mmates were made ineligible co receive gain time. The State argued

that while there was no such mandatory provision in the statutes in

effec: at the time of Brit's cffsnse, there was ne constitutional

violation because the increased punishment was due to Britt’s fusure

of sudsequent misconduct, not the original crime. We concluded

thar under Weaver vy, Graham 450 U.S. 24. 34 (1981). as reaffirmed

inLynce v, Mathis. $19 U.S. at 442. the new provision violates ex

ost facto principles because, ‘by curtailing the availability or

e credits ic effectively postpone[d] the date when (an ——

would become ~— for eariv release.’ Britt. 704 Sa. 2d at 10+

(quoting Lynce. 319 U.S. at +32). Accordingly. we find we ars

required to refec: the State's “subsequent or future miscondu=*"’

argument in this case as well. af he

There is 2iso the question of whether che Scate san constitu:.on-

ally invoke che aforementioned first emphasized portion of sec-ion

$45,278 providing for the cancellation of the awards for “al:

inmares serving = serience or combined seruences tn the Cusiocy of

the Zepartmer:."*

Before Lvnce was decided. the time of the offense was the only

relevant time frame for determuning whethe: an inmate hac an 2x

post ‘acto nen: *o acenain benew. See Weavers, Graham. +50 U.S.

24. 30/1981... Further, there was no ex post facto vioiation where 2

retroactive change affected 2 Seneiic. if. a: the time of the offense.

the desired benestr was mere!s speculative. See California Deo:. af

Corrections». Worales, 314 U.S. 0 499. 091995). Atter Lence.

however. an ex post facto inquiry involves not only looking 2: whe

tume of offense. Sut also invoives looking at subsequent time trames

as Well to dete-mine whether 2 possibis. yet speculative benest: Aas

become morse definits. See Lynce v. Maczats. 519 U.S. a --8. In

Lynce. he grant of overcrowding credits War speculative s: cas ume

of that inmate s offeass desause no one sould te! for sure Wisshe:

|

24 Mla. L. WARE 99 ~«Be!49Pm

SUPREME COURT OF FLORIDA

P.d2

the prison overcrowding levels would be. © extreme as to

er the relevant overcrowding stanuies. Nev... aeless, Lynce was

ibsequently awarded a certain amount of credits which ultimately

led to his release from incarceration. Therefore, bv the time Lynce

was released, the credits were clearly no longer non tifiable or

unknown. On the contrary they had become acerainry. /d. (con-

cluding that ‘unlike in Morales, the actual course of events makes

it unnecessary to speculate’’). é

In the present case, as in Lynce’s case, at the time of Lancaster’s

offense re ae gain time had already been provided for by

statute, See § 944.598, Fla. Scat. (Supp. 1986) (Emergency Gain

Time); § 944.276, Fla. Stat. (1987) (Administrative Gain Time).

Accordingly, Lancaster could have contermlated receiving

overcrowding credits at the time of his offense, Furthermore,

Lancaster did receive these credits and was actually released by way

of the above-mentioned statutes. Furthermore, when Lancaster was

released on probation, the 1993 Safe Streets Initiative had not been

enacted yet. Thus, akin to che simation with Lynce, Lancaster's

““hope’’ of receiving overcrowding gain time had become a reality.

As mentioned above, the Safe Streets Initiative was enacted in

1993, long after Lancaster's underlying offense and approximately

two years after his release on probation. If the State were to now

apply that later-enacted law to Lancaster and cancel his overcrowd-

ing gain time, the effect of that law would be to retroactively take

away something to which Lancaster had an expectation at the time of

his offense, actually received during his incarceration, and actual!

retained after revocation or must now be awarded because the 198

forfeiture provision, section 944.28(1), may not be applied to him

(as discussed above). We find thar the application of the Safe Streets

Initiative to Lancaster now would result in the taking of something

which was certainly nor ive. Accordingly, we conclude that

under the analysis ofLynce, the State cannot apply section 944.278

the Safe Sureets Initiative) ro Lancasterto cancel his Administrative

ain Time or Provisional Credits without violating the Ex Post

Facto Clause. See also Jackson v, Singletary, §95 So. 24 494 (Fla.

3¢ DCA 1997) (applying first part of section 944.278 canceling

awards for all inmares serving sentences in DOC’s custody to

—- would be an ex post facto violation based on analysis in

ynce); State ex rel. Florida Dept. of Corrections v. Stevenson, 695

So. 24727 (Fla. 5th DCA 1996) (finding it unconstitutional to apply

second part of section 944.278 to Stevenson, who had been released

prior to the statute’s enactment, such inmates could not have

contemplated the later-enacted statute’s ‘‘additional consequences

for their violation of probation’’), review granted, 687 So. 2d 1306

(Fla. 1997).

For the foregoing reasons, we approve the result of the Fourth

District’s decision finding that the State cannot cancel or forfeit

Lancaster’s Provisional Credits or his Administrative Gain Time.

It is so ordered. (HARDING, C.J., and SHAW, KOGAN and

ANSTEAD, JJ., concur. WELLS, J., dissents with an opinion.

PARIENTE, J.. recused.)

(WELLS, J., dissenting.) In accord with Justice Grimes’ dissent in

Britt v. Chiles, 704 So. 24 1046 (Fla. 1997), in which I joined, I

dissent to the majority’s unwarranted and unnecessary extension of

Lynce v. Mathis. 519 U.S. 433 (1997), to the facts of this case. The

United States Supreme Court does not require this reversal.

This case is plainly distinguishable from Lynce by the fact that

Lancaster violated the terms of his release.

"In Meola, we address gain time in tie context of prisoners who had their

Admuniscrative Gain Time and/or Provisional Credits canceled, We hold wat the

petiooners are not entided under ex post facto principles wm the reinsratement of he

overcrowding credits chac they had actually been awarded, but which were

subsequendy canceled. We also hold shat the petitionars were accorded due process

in the cancejlation of the credice and chat there was no protection violation.

In Tomas, we address the exirnsion and then cancellation of prisoner 5 release

dates under the Control Release program. We hold that since inmates were always

on notices that sheir control release dates could de changed to a later date, the

legisiative amendmens to the program and. ultimately. the cancellarion of their

release Jates lid not result in an cx post facto violation,

in Guemet. we address gain time cn the context of prisoners who were never

awatied <crain types of creuits Dut sro Auve been gwerded such credits. We

beld Vaal We wlsequent revusins wm We pruon uvercrowdimg wate ~ RR

Pfectecly Mate ine petneecn ecg ible @ reuETrs wry Credo camnmenes 26

e =

peut Bae ep = we —_

ee, °

United State's Supreme Coun deci: ynce v. Mathis bas had on gain tim

Caselaw, they are clearty distinguisha. ._, us discussed below. -

"in foomoe: 2 of our opinion in Tripp we noted that “prior c the enactment of

chaper 39-531. Laws of Fors. "eredit for drne served’ included jgil dme actually

served and gain ame granied to sechon 944,275, Florids Stamres (1991).

Stare v. Green, 347 So. 24 925. $27 (Fla.i989). It does not include ‘provisional

credits’ or ‘administrative gain ame’ which is used to alleviate pnson overcrowd.

ing und is not related to satisfactory behavior while in prison. See § 944.277, Fig,

Stac. (1991). By virme of chapter 89-531. the revocacon of probation or

community contol now serves 0 forfeit any gain time previously samed. This

change io che law ig inapplicable w Tripp because his crimes were committed

before October 1. 1989, he effective dae of the act.” Tripp, 622 SoldacS43n.2. |

Prior wo chat das, dere was stacusory authority for the forfcicure of gain ame upon ;

revocaaon of parole and clemency, but not probation, community conroi, or

eters release. See § 944.38(1), Fla. Scar. (1989); ch. 89-531, § 6, 02717,

20, at 272). Laws of Fla.; § 948.06(6), Fla. Seac. (1989): ch. 89-531, § 13, at

2720; § 20, at 2721. Laws of Fis.

*See Ar. V, $3(b)(3). Fla. Conse

‘Section 944,28(1), Fla. Suar. (1989), as amended by chapter 89-531, section

6, 02717, Laws of Florida, provided in pertinent part:

If a prisoner \s convictad of escape, or if the clemency, cond!aona! release as

described in chapter 947, probation or community control as described in s.

948.01, provisional release as described in s. 944.277, or parole granted to him

is revoked, the deparnnect may, without nodce or hearing, declare a forfeiture

of all gain-time earned according to the provisions of law by such prisoner

prior to such escape or his release under such clemency, conditional release,

probation, community contol, provisional release, or parole.

is added). As amended, this section went into effect on October |, 1989

See ch. 89-531. § 2, af 2721, Laws of Fla.

*Chapter 69-531, section 19. Laws of Florida added subsection w section =

943.06, Florida Scanstes. That amendment was codified in section 948.06(6).

Florida Laws (1989), and provides, in pertinent par:

randing amy provision of law to the contrary, whenover probadon or

commmunry control, including the probaconary or communuty conrro! portion |

of a split sentence, is violated and the probation or community control is

revoked, the offender, by reason of his misconduct, may be deemed to have

forfeited all gzin-ame or commutacion of ame for good conduct. as provided

by law, earned up t the date of his release on probation of community conmro!

from a state correctional institution. This subsection does nor deprive the

prisoner of his right to gain-ame or commurarion of time for good conduct, as

provided by law, from the dam on which he is resurned to pnson.

This section went into effect on October 1, 1989. See ch. 89-531, § 20, ar

2721, Laws of Fla.

APPENDIX

Overcrowding relief programs - Dates - Thresholds

& acy Gan A@min. Gait Prov. Crexims Commre

Tune | 906.598 Time 494 277 § 967,166

§ 94.276

VIGIL : UST AME: T1/86-60 1/90; W/1/90.6/16/95:

Re my 97.5% beiow 97,5% of LC*

a@Lec ¢#Lc @ Lc

CVUG6/16/9) : W1/90.6/17/93: W/7/99-42.498:

i% oe Sor below 97.5% of L.C*

wc of LC*

MESALING: *

mee 7

3 and (00%

=

heres ik

®

LC = Lawful Capacity. See relevant statute referred to above. 2

Sones Waganans 397 F. Supp. 20, 22 (M.D. Fie. 1975), aff'd $25 F.id

1239 (Sth Cur, 1976); see also §944,.023(1Xb); § 944.598(6)(b) (note 1). Flo. Seat.

(Supp. 1992).

. Laws of Fla.

ain nme was repealed effective June 17, 1993 ch. 93-

406. § 32, Laws of Fa, Rmargeney gain cme was repealed i fecuesTone 47,

1993. ch. 93-406, $32. Laws of Pla. Adminisuradve gain ime was pwpenied i

effecdve July |, Lea. See § 944.276, Fla. Scar. (1988); cn. 88-122. 66° 4

Fla. The provisio credies repealed Sima

pnecnc-d

MAR 11 ’99 @2:S@PM P.23

Case No. A-739

IN THE SUPREME COURT OF THE UNITED STATES

October Term 1998

STATE OF FLORIDA, Petitioner,

v.

ANTHONY LANCASTER, Respondent.

CERTIFICATE OF SERVICE

| HEREBY CERTIFY that on March 9, 1999, | served three (3) copies of the

Respondent's Brief in Opposition to Petition for Writ of Certiorari on opposing counsel, at

the following address, by placing same in the United States Mail, with first-class postage

prepaid:

Carolyn M. Snurkowski

Assistant Deputy Attorney General

The Capito!

Tallahassee, Florida 32399-1050

RICHARD L. JORANDBY

PUBLIC DEFENDER

(bel, Gee

Ot CALVELLO

Assistant Public Defender

Attorney for Anthony Lancaster

15th Judicial Circuit of Florida

Criminal Justice Building/6th Floor

421 3rd Street

West Paim Beach, Florida 33401

(561) 355-7600

Florida Bar No. 266345

STATE OF FLORIDA )

COUNTY OF PALM BEACH )

SWORN TO AND SUBSCRIBED before me this th day of March, 1999.

\

( 4 Personally known

( ) Produced ID Mite WALL

NOTARY PUBL!

ae Florestine Wilson

fe ey MY COMMISSION # CC770434 EXPIRES

September 23, 2002

THR TROY FAWN INSURANCE Bec,