Petition for Writ of Certiorari — Singletary v. Gwong

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96 958 DEC 1 6 19%

Case No. OFFICE Of THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1996

HARRY K. SINGLETARY, Jr., Secretary,

Florida Department of Corrections,

Petitioner

RICHARD BING GWONG,

Respondent

PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF FLORIDA

ROBERT A. BUTTERWORTH

ATTORNEY GENERAL

MARTY E. MOORE

Deputy General Counsel

ATTORNEY GENERAL’S OFFICE

PL-01, The Capitol

Tallahassee, FL 32399=t65@

(904) 487-1963 RECEIVED

Counsel for Petitioner DEC 716 1996

OFFICE OF THE CLERK

| __suepsuecouss, u.s

————aw7~ = as

QUESTION PRESENTED

Whether the Ex Post Facto Clause requires Florida to provide

early release to more than 20,000 inmates convicted of violent

crimes and sex offenses on the basis of a prison management

Statute that authorizes grants of "purely discretionary"

incentive gain-time for good conduct, thereby greatly

expanding the rule of Weaver v. Graham, 450 U.S. 24 (1981),

which held that the Ex Post Facto Clause prohibited retroactive

application of statutory changes regarding automatic grants uf

mandatory gain-time.

TABLE OF CONTENTS

Pages

FUSE ITT FETED 6.46 6656 he R A i

SA A CAREERS 5 6 550 Nios 694 OE ii-

SAmes OP AUTRE kos 9 64 ad ON iv

bo et ere ree rere or rrr 1

PUREE EEOE 054 6h PRANESS DERM EEA O SSA 2

CONSTITUTIONAL PROVISION INVOLVED ...... 2

STATUTORY PROVISION INVOLVED ........... 2

SEAS ROEINS SAE" SERED AMON 6-600 6 Wc ee ks ees 3

REASON FOR GRANTING THE WRIT ........... 6

REVIEW SHOULD BE GRANTED SO THIS COURT

MAY 1) RESOLVE THE CONFLICT BETWEEN ITS

MOST RECENT EX POST FACTO OPINIONS AND

THE DECISION BELOW, 2) DETERMINE IF

WEAVER V. GRAHAM SHOULD BE EXTENDED TO

BAR PROSPECTIVE CHANGES IN HOW

DISCRETION MAY BE EXERCISED UNDER WHAT

WEAVER ITSELF CHARACTERIZED AS A

"PURELY DISCRETIONARY" STATUTE, AND 3)

LIMIT PRESENT CONFUSION FACED BY LOWER

COURTS WHEN CONFRONTING THE TENSION

BETWEEN EX POST FACTO LIMITATIONS TO

CRIMINAL SENTENCING AND THE RIGHT OF

STATES TO MANAGE THEIR PRISONS.

ill

TABLE OF AUTHORITIES

CASES

Barger v. Peters,

645 N.E.2d 175 (Ill. 1994),

OE re Ss Se NS oe ae ee ae 4,14

California Department of Corrections v. Morales,

US. :

6 ts eee os ee ee 4,9,10,15

Collins v. Youngblood,

497 U.S. 37,

110 S. Ct. 2715,

ee ee ee ee al pee ey 4.11

Dobbert v. Florida,

San ah TE 6 hoes Ca eee ee 4,15,16

Dominique v. Weld,

Pope Bak Gls oe Ae. Be eee ie a a 4,14

Ekstrand v. State,

Fe ee ee ad. NE ig ha ewe ua ee des 4,14

Ewell v. Murray,

11 F.3d 482 (4th Cir. 1993),

cert. denied,

(ie! Ce cae ch ta uwh eee eee ew ees 4,14

Gwong v. Singletary,

a en

21 Fla. L. Weekly $430 (Fla. October 10, 1996) ...... 1

Gwong v. State,

567 So. 2d 906 (Fla. 2nd DCA 1990) ........... 3,5

Hopt v. Utah,

ROSS TIPU on i boca vc deieee yeas 5,16

Lewis v. Casey,

meus. ,

EEO Oe SEPT CAID ob thee eee 5,17

Lindsey v. Washington,

POE Mis OPT ETD ovo eke ee Lee 5,10,11

Lynce v. Mathis,

Og rere ree eee 6,19

Pell v. Procunier,

SOY Shs WOT. fh 0 ba hike Oh eek Lee 6,18

Procunier v. Martinez,

OU Gis POE kk be Fie hc ev wee ee 6,18

Raske v. Martinez,

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

cert. denied,

Se ee ee oe eN ORE eas ea ee 6,9

Shifrin v. Fields,

See oe thee CO. TOO oe a Se 6,18

Thornburgh v. Abbott,

ee i REP ons So ek eR NEES oe ea 6,17

Trop v. Dulles,

Poet is MARE 6 oh a's 0c ween buena 6,15

Turner v. Safley,

2 ete eS. , ernie eA eS + eee ee 6,17

Olone v. Estate of Shabazz,

ne Mt SR REUEED kk 0c ot EV carers Sei

Miller v. Florida,

ee SL LUTE ek ak ee eee eee 4,5,6,7,10,11

U.S. v. Reese,

Fe ee Se As BOD he owe ae eee 7,13

Waldrup v. Dugger,

9M get S| errr ts ee ee 9

Weaver v. Graham,

at CRED 6 eee ee eS ee 1,4,6,7,9,11,12,16

Williams v. Lee,

33 F.3d 1010 (8th Cir. 1994),

cert. denied,

ae, ee

Fae En SE kore cn a kee 7,14

STATUTES AND CONSTITUTIONS

ESAs BREE owed ene CONOR ee eee y

Set at, FM. SUM. PTD). ons oss Ee we a 7,11

ee a me Rr or er a 23,4

SPGS.270U1), FA. GU. GIFT) wo i ctw cess 7,8,12

SPOR. ZIaGs), WU. CIBTS) oe i see a eee ae 8

Sereer eh, WORM, CISTI) oc ee bake kee’ 8

§944.275(4)(a), Fla. Stat. (1985) ............... 12

§944.275(4)(b), Fla. Stat. (1985) .......... 4,7,15,18

Vii

Case No.

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IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1996

HARRY K. SINGLETARY, Jr., Secretary,

Florida Depariment of Corrections,

Petitioner

RICHARD BING GWONG,

Respondent

PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF FLORIDA

OPINION BELOW

The opinion of the Supreme Court of Florida is reported

as Gwong v. Singletary, _ So. 2d __ , 21 Fla. L. Weekly S430

(Fla. October 10, 1996), and is reprinted in the Appendix to

this Petition. [A1-A11].

JURISDICTION

The decision of the Florida Supreme Court was

rendered on October 10, 1996. Respondent Singletary’s timely

Motion for Rehearing, Clarification and Issuance of Order

Staying Finality of Opinion Pending Review by the United

States Supreme Court was denied in a final opinion issued

November 22, 1996. A copy of the motion is reproduced in

the Appendix [A32-A36] as well as a copy of the opinion

denying rehearing. [A12-A15] This Court’s jurisdiction is

invoked under 28 U.S.C. § 1257.

CONSTITUTIONAL PROVISION INVOLVED

The opinion below involves the Ex Post Facto Clause

of Article II, Section 10, of the Constitution for the United

States of America, which states in pertinent part that:

No State shall enter into any Treaty, Alliance,

or Confederation; grant Letters of Marque and

Reprisal; coin Money; emit Bills of Credit;

make any Thing but gold and silver Coin a

Tender in Payment of Debts; pass any Bill of

Attainder, ex post facto Law, or Law impairing

the Obligation of Contracts; or grant any Title

of Nobility.

STATUTORY PROVISION INVOLVED

In relevant part, section 944.275, Florida Statutes

(1985), provides:

(1) The department [of Corrections] is

authorized to grant deductions from sentences in

the form of gain-time in order to encourage

satisfactory prison behavior, to provide

incentive for prisoners to participate in

productive activities, and to reward prisoners

who perform outstanding deeds or services.

(4)(b) For each month in which a prisoner

works diligently, participates in training, uses

time constructively, or otherwise engages in

Positive activities, the department may grant up

to 20 days of incentive gain-time, which shall

be credited and applied monthly.

(5) | When a prisoner is found guilty of an

infraction of the laws of this state or the rules of

the department, gain-time may be forfeited.

(emphasis supplied)

The full text of section 944.275, Florida Statutes (1985), is

reproduced in the Appendix. [A16-A18].

STATEMENT OF THE CASE

Respondent, Richard "Bing" Gwong (Gwong), is

presently serving a 22-year sentence in the custody of the

Florida Department of Corrections (FDOC) after being

adjudicated guilty of second-degree murder by the Circuit

Court in Pinellas County, Florida, for a murder he committed

on January 13, 1987. Gwong was originally convicted by a

jury of first-degree murder, adjudicated guilty and sentenced to

a life term with a minimum mandatory 25 years before

becoming eligible for parole. That judgment and sentence were

upheld on appeal in Gwong v. State, 567 So. 2d 906 (Fla. 2nd

DCA 1990). But Gwong’s original judgment and sentence

were later set aside by the trial court on collateral attack.

Gwong then entered a guilty plea to second-degree murder and

was sentenced by the trial court "to the custody of the

Department of Corrections [t]o be imprisoned [flor a term of

22 years," nunc pro tunc to his original sentencing date of

February 24, 1989, with credit for time served.

Effective April 21, 1996, the FDOC adopted the

amendment to the administrative rule in question, which

implemented a statute providing that FDOC "may grant [to

qualifying inmates] up to 20 days of incentive gain-time, which

shall be credited and applied monthly." (emphasis supplied)

§ 944.275(4)(b), Fla. Stat. (1985). FDOC, by this rule

amendment, determined it would no longer grant incentive

gain-time to specified violent felony offenders and sex

offenders who have served less than 85% of their sentences.

The amendment, however, canceled no incentive gain-time

credits granted to inmates prior to its effective date. The entire

text of Rule 33-11.0065, Florida Administrative Code, with the

text of the 1996 amendment in italics, is reproduced in the

Appendix to this Petition. [A19-A31].

On April 29, 1996, Gwong filed a Petition for Writ of

Mandamus in the Supreme Court of Florida. The Petition

alleged that this administrative rule amendment violated the Ex

Post Facto Clause of the United States Constitution because it

prevented Gwong from being eligible "to earn up to 20 days

each month of incentive gain-time -- and thereby substantially

shorten his actual period of incarceration."

On October 21, 1996, the Florida Supreme Court issued

its decision on the administrative rule amendment, finding in

favor of Gwong. Citing to this Court’s opinions in Weaver v.

Graham, 450 U.S. 24, (1981), California Department of

Corrections v. Morales, __ U.S. __,115 S. Ct. 1597, (1995)

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

Supreme Court held:

Given that the amendment (1) applies to a class

of inmates who committed their offenses before

the amendment’s effective date and (2) acts to

enhance the measure of punishment because it

eliminates the ability of certain inmates to earn

incentive gain-time credits, we are compelled to

conclude that it violates the ex post facto

prohibition.

{A10].

On November 22, 1996, the Florida Supreme Court

issued an opinion denying Petitioner’s motion for rehearing and

Stay, taking pains to point out that under its reading of Weaver

v. Graham it had no choice but to find in Gwong’s favor. The

court explained:

It is very clear that the holding of the United

States Supreme Court in Weaver is still the law

of the land, whether we like it or not. We can

neither ignore nor avoid the express dictates of

the United States Supreme Court in its holding

in Weaver. ‘

[A13].

REASON FOR GRANTING THE WRIT

REVIEW SHOULD BE GRANTED SO THIS

COURT MAY 1) RESOLVE THE CONFLICT

BETWEEN ITS MOST RECENT EX POST

FACTO OPINIONS AND THE DECISION

BELOW, 2) DETERMINE IF WEAVER V.

GRAHAM SHOULD BE EXTENDED TO BAR

PROSPECTIVE CHANGES IN HOW

DISCRETION MAY BE EXERCISED UNDER

WHAT WEAVER ITSELF CHARACTERIZED AS

A "PURELY DISCRETIONARY" STATUTE,

AND 3) LIMIT PRESENT CONFUSION FACED

BY LOWER COURTS WHEN CONFRONTING

THE TENSION BETWEEN EX POST FACTO

LIMITATIONS TO CRIMINAL SENTENCING

AND THE RIGHT OF STATES TO MANAGE

THEIR PRISONS.

If the opinion below is not a correct extension of Weaver

v. Graham, 450 U.S. 24 (1981), Florida will needlessly suffer a

significant adverse impact caused by the forced early release of

more than 20,000 inmates, -- including convicted murderers,

kidnappers, rapists and pedophiles -- and forfeit flexibility in

managing its prisons. [A5]. Florida, therefore, seeks to have

this Court determine whether the rule announced in Weaver v.

Graham, 450 U.S. 24 (1981), extends to discretionary

incentive gain-time, and in particular to an administrative rule

limiting the ability of inmates to accrue incentive gain-time in

the future.’ This is a question of great importance to all states.

' Lynce v. Mathis, Case No 95-7442, argued November

4, 1996, deals with provisional credits, also referred to as

"overcrowding" credits and "administrative gain-time." This

As the instant case demonstrates, Weaver continues to confuse

both state and federal courts regarding the applicability of the

ex post facto prohibition to prison management laws and

regulations far removed from the imposition of a criminal

sentence -- €.g., discretionary incentive gain-time -- and

consequently has compromised the states’ management ability

to adapt to changing circumstances.

On its face, Weaver appears to uphold the fundamental

concept that a state, consistent with the Ex Post Facto Clause,

may not retrospectively apply a law that, to the detriment of a

criminal defendant, directly affects a sentence at the time the

sentence is imposed. This Court held there that Florida could

not retroactively apply a change to its mandatcry gain-time

Statute to inmates who had committed their crimes before the

effective date of the change because the statute provided that

"an inmate is automatically entitled to the monthly gain time

simply for avoiding disciplinary infractions and performing his

assigned tasks." (emphasis supplied) 450 U.S. at 35. The

mandatory statutes involved in Weaver were section 944.27,

Florida Statutes (1975),? and section 944.275(1), Florida

Court’s decision in that case could bear on this one.

2 In pertinent part, § 944.27, Florida Statutes (1975), provided:

(1) The [Department of Offender Rehabilitation} shall grant the

following deductions for gain-time from the sentences of every prisoner who

has committed no infraction of the rules or regulations of the [department],

or of the laws of the state, and who has performed in a faithful. diligent,

industrious, orderly, and peaceful manner the work, duties, and tasks

assigned to him, to wit:

(a) Five days per month off the first and second years of his

sentence;

(b) Ten days per month off the third and fourth days of his

sentence;

his sentence; and he shall be entitled to such credit for a month as soon as

Statutes (1979).° In other words, mandatory gain-time was a

sentencing consideration precisely because it was compulsory

and could, in a specifically quantifiable manner, be relied upon

by a criminal defendant as a guaranteed means of shortening a

sentence. Effectively it was an automatic credit.

Weaver specifically and clearly distinguished the

mandatory and automatic form of gain-time directly involved

there from the statutory predecessor to the present incentive

gain-time found in then subsections 944.275(2) and (3), Florida

Statutes (1979). Jd. at 450 U.S. 34, 35. Weaver observed that

"the award of extra gain time [under these later statutory

provisions] is purely discretionary, contingent on both the

wishes of the correctional authorities and special behavior by

the inmate." (emphasis supplied) /d. at 450 U.S. 35. The

administrative rule here at issue was adopted under the current

version of these statutes.

he has served such time as, when added to the deduction allowable, would

equal a month. (emphasis supplied)

> The amended statute, § 944.275(1), Florida Statutes (1979),

provided that:

(1) The department shall grant the following deductions for gain-

time on a monthly basis, as earned, from the sentence 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

sentence;

and the prisoner shall be entitled to credit for a month as soon as the

prisoner has served such time as, when added to the deduction allowable,

would equal a month. (emphasis supplied)

Ignoring Weaver’s characterization of discretionary

incentive gain-time statutes, the Eleventh Circuit Court of

Appeals determined that Weaver barred prospective changes in

them, stating in Raske v. Martinez, 876 F.2d 1496, 1500 (11th

Cir. 1989), cert. denied, 493 U.S. 993 (1989):

Thus, even though the opportunity to earn

incentive gain time is dependent on the grace of

the legislature and the availability of jobs, we

conclude that if the State affords its inmates

such work, it is bound to reward prisoners for

their services at a gain time rate at least equally

advantageous to that in effect at the time of

those prisoners’ offenses.

The Supreme Court of Florida accepted and adopted

Raske, likewise holding that Weaver governed discretionary

incentive gain-time. Waldrup v. Dugger, 652 So. 2d 687 (Fla.

1990). Both Raske and Waldrup rejected Weaver's language

and Florida’s argument making clear that discretionary

incentive gain-time -- being granted at the discretion of FDOC

("the wishes of the correctional authorities") for good behavior

after incarceration -- is inherently different than mandatory

gain-time.

Weaver did not make clear whether it considered

mandatory gain-time to be part of the sentence ("[w]e need not

determine whether the prospect of the gain time was in some

technical sense part of the sentence," 450 U. S. 32). Rather,

it based its holding that the Ex Post Facto Clause had been

violated on its conclusion that the prisoner had been

"disadvantaged" by the statutory change. Jd. at 450 U.S. 34.

However, in California Dept. of Corrections v. Morales, _

U.S. __,. 115 S. Cr. 1597. 1601 (1995), this Court closely

examined the common ex post facto thread running through the

"trilogy of cases" comprised of Lindsey v. Washington, 301

U.S. 397 (1937); Weaver v. Graham; and Miller v. Florida,

482 U.S. 423 (1987), and expressly rejected their reliance on

whether the statutes there involved "operate to the

‘disadvantage’ of covered offenders." Id. __ U.S. _., 115 S.

Ct. at 1602, n. 3.

The Morales Court began its analysis of the Lindsey,

Weaver and Miller trilogy by reaffirming “that the Ex Post

Facto Clause incorporated ‘a term of art with an established

meaning at the time of the framing of the Constitution.’" Jd.

115 S. Ct. at 1601. Then the Court found that, in each of

those three cases, the statute in question directly affected the

criminal sentence at the time the sentence was imposed. /d.

The ex post facto violation in Lindsey arose when a law enacted

after the commission of the crime replaced the sentencing

judge’s option of an indeterminate sentence "of not more than

15 years" with a mandatory 15-year sentence. /d. The ex post

facto infirmity in Miller was a post-crime statutory

modification that altered "the substantive ‘formula’ used to

calculate the applicable sentencing range" at the time of

sentencing. Jd. The Morales Court treated Weaver as a

sentencing case, finding that, because the challenged gain-time

statute called for "mandatory reductions to the terms of all

prisoners who complied with certain prison regulations and

State laws . . . . it effectively eliminated the lower end of the

possible range of prison terms." (emphasis supplied) /d.

Morales reiterated this Court’s return to a traditional

view of the ex post facto prohibition, that is, one without the

"disadvantaged offender" test featured in the "trilogy of cases."

The Court there stated:

Our opinions in Lindsey, Weaver and Miller

suggested that enhancements to the measure of

criminal punishment fall within the ex post facto

prohibition because they operate to the

"disadvantage" of covered offenders. See

Lindsey, 301 U.S., at 401, 57 S. Ct., at 799;

Weaver, 450 U.S., at 29, 101 S. Ct., at 964;

Miller, 482 U.S., at 433, 107 S. Ct., at 2452-

53. But the language was unnecessary to the

results in those cases and is inconsistent with the

framework developed in Collins v. Youngblood,

497 U.S. 37, 41, 110 S. Ct. 2715, 2718, 111 L.

Ed.2d 30 (1990). After Collins, the focus of the

ex post facto inquiry is not on whether a

legislative change produces some ambiguous

sort of "disadvantage," nor, as the dissent seems

to suggest, on whether an amendment affects a

prisoner’s “opportunity to take advantage of

provisions for early release,” see post, at 1607,

but on whether any such change alters the

definition of criminal conduct or increases the

penalty by which a crime is punishable.

Id. at 1602, n. 3.

The Morales conclusion that the mandatory gain-time

statute addressed in Weaver was an integral part of the sentence

follows from its mandatory, automatic nature. The moment

Weaver was sentenced, he could readily calculate the

maximum amount of time he would spend in prison (with good

conduct) by simply deducting all mandatory gain-time from his

sentence, as FDOC was required to do by statute. See

§944.27, Fla. Stat. (1975). This automatic reduction of his

sentence was the "lower end of the possible range of prison

terms" referred to in Morales. Then, after Weaver entered

prison, that automatic reduction was Statutorily altered --

increasing the upper limit of his sentence -- when the Florida

Legislature reduced mandatory gain-time awards.‘ See

§944.275(1), Fla. Stat. (1979).

The administrative rule involved here did not similarly

impact Gwong. At the time of his sentencing, Gwong could

easily calculate the automatic reduction in his sentence by

deducting from that sentence all mandatory gain-time, called

"basic gain-time” in subsection 944.275(4)(a), Florida Statutes

(1985).° Appendix [A17]. However, Gwong could not

perform such a calculation with respect to prospective incentive

gain-time precisely because it was not part of his sentence.

Rather, incentive gain-time was a contingency governed

entirely by FDOC’s prison management decisions and Gwong’s

personal behavior. Weaver’s characterization of incentive gain-

time as "purely discretionary, contingent on both the wishes of

the correctional authorities and special behavior by the inmate,"

Weaver at 450 U.S. 35, itself put Gwong on notice that he had

no expectation of receiving grants of incentive gain-time.

In deciding Waldrup v. Dugger, the Florida Supreme

Court, following the lead of the Eleventh Circuit Court of

Appeal in Raske, while ignoring Weaver’s own characterization

of incentive gain-time, did not have this Court’s guidance in

* By deducting the mandatory gain-time automatically

granted by statute, Weaver's 15-year sentence was

instantaneously reduced to slightly less than 11 years in prison

at the time it was imposed by the trial court. Subsequent

statutory changes to mandatory gain-time would have raised that

period by more than two years. Weaver 450 U.S. at 27, n. 6.

* By deducting the mandatory ten days of basic gain-time

automatically granted by statute for every month of the sentence,

Gwong’s 22-year sentence was instantaneously reduced by one-

third at the time it was imposed by the trial court.

heciaiiaiiaiadbiaaiiiaaiiaaia,

Morales and Collins that "disadvantage" to the offender is no

longer the test for an ex post facto violation. But in the instant

case, the court below also disregarded Collins’ and Morales’

rejection of an inmate’s diminished "opportunity" for early

release as a consideration in an ex post facto inquiry. In its

original opinion in the instant case, the Florida Supreme Court

held:

Given that the amendment (1) applies to a class

of inmates who committed their offenses before

the amendment’s effective date and (2) acts to

enhance the measure of punishment because

it eliminates the ability of certain inmates to

earn incentive gain-time credits, we are

compelled to conclude that it violates the ex post

facto prohibition. (emphasis supplied)

[A10]. The highlighted words mirror the reasoning of the

dissent in Morales.

The court below had obvious difficulty separating

criminal sentencing considerations from prison management

issues for the purpose of conducting an ex post facto inquiry.

The court’s struggle is representative of the confusion

confronting state and federal courts throughout the land when

they attempt to apply the dictates of Weaver to prison

management laws and regulations.

For example, some courts focus on whether the law or

regulation under review adds additional time to the sentence,

and, if not, they find no constitutional violation. See U.S. v.

Reese, 71 F.3d 582 at 590 (6th Cir. 1995) (after acknowledging

conflict with three other circuits, the court held that a new

sentencing statute increasing the amount of prison time to be

imposed upon an inmate who violates conditions of supervised

release does not violate the ex post facto prohibition because

the inmate received fair notice of the new law and it did not

increase his original sentence); and Ewell v. Murray, 11 F.3d

482 at 486 (4th Cir. 1993), cert. denied, __ U.S. _. (1994),

(new regulations by Virginia’s Departrnent of Corrections

taking away an inmate’s good conduct credits for refusal to

provide blood samples to a DNA data bank do not violate the

ex post facto prohibition because "[t]he punishment does not

add punishment for the original crime for which the inmate was

incarcerated").° Other courts, though, look to total time in

incarceration to determine whether an ex post facto violation

has occurred -- with predictable results. See Barger v. Peters,

645 N.E. 2d 175 at 177 (Ill. 1994), cert. denied, __U.S. _

(1995) (a new statute precluding inmates convicted of specified

violent crimes and sex offenses from accruing new good-

conduct credits violates ex post facto prohibition because the

United States Supreme Court "construes punishment to mean

the actual time that [an inmate] spends in prison"); Williams v.

Lee, 33 F.3d 1010 (8th Cir. 1994), cert. denied, __ U.S. __,

131 L. Ed. 2d 244, (a new statute allowing revocation of an

inmate’s accumulated good-time credits for violating parole by

committing new crime was found to violate the ex post facto

prohibition because, by authorizing reinstatement of inmate’s

original sentence, the new law increased inmate’s punishment).’

® See also Dominique v. Weld, 73 F.3d 1156, 1163 (1st Cir. 1996)

(a new state regulation prohibiting certain inmates convicted of sex offenses

from participating in work release -- thereby causing petitioner to lose his

work release privileges -- does not violate the ex post facto prohibition

because [t]he change does not affect the length of Dominique’s sentence or

his parole options”).

” See also Ekstrand v. State, 791 P.2d 92, 95 (Okl.Cr. 1990) (a

statutory amendment lowering the amount of reduction credits granted to

inmates to shorten their sentences violates the ex post facto prohibition when

applied to inmates who were convicted of crimes occurring before its

On its face, section 944.275(4)(b), Florida Statutes

(1985), is an administrative prison Management statute that is

wholly removed from the criminal law and is not penal, for it

does not inflict punishment. It adds not a day to Gwong’s

sentence, which is the "quantum of punishment attached to the

crime." Dobbert v. Florida, 432 U.S. 282 (1977). As stated

by this Court in Trop v. Dulles, 356 U.S. 86, 95 (1958):

In deciding whether or not a law is penal, this

Court has generally based its determination

upon the purpose of the statute. If the statute

imposes a disability for the purposes of

punishment--that is, to reprimand the

wrongdoer, to deter others, etc., it has been

considered penal. But a statute has been

considered nonpenal if it imposes a disability,

not to punish, but to accomplish some other

legitimate governmental purpose. (emphasis

supplied)

Under traditional ex post facto scrutiny, subsection

944.275(4)(b), Florida Statutes (1985), cannot be included in

the “substantive ‘formula’ used to calculate the applicable

sentencing range." Morales, 115 S. Ct. at 1601. That is

because: 1) this is a remedial statute, not a criminal or penal

law; 2) the statute does not directly affect a criminal sentence

at the time the sentence is imposed; 3) the statute unmistakably

gives FDOC the discretion to grant, or not, incentive gain-time

deductions to inmates; 4) the sentencing court, the prosecution

effective date because "this reduction lengthens the period that someone in

petitioner’s position must spend in prison").

and Gwong all had "fair warning"® that incentive gain-time was

discretionary and should not be included in the sentencing

calculus; and 5) this administrative prison management statute

is well within the scope of Florida’s legitimate penological

interests.

To this day, Gwong’s sentence for second-degree

murder remains unchanged at 22 years. It is Gwong’s sentence

-- not a possible opportunity to receive early release from

prison via incentive gain-time -- that is attached to the crime

and protected from legislative tampering by the Ex Post Facto

Clause. As originally stated by this Court in Hopt v. Utah,

110 U.S. 574, 589-590 (1884), and quoted with approval

nearly a century later in Dobbert, 432 U.S. at 295 (1977):

The crime for which the present defendant was

indicted, the punishment prescribed therefor,

and the quantity or the degree of proof

necessary to establish his guilt, all remained

unaffected by the subsequent statute. (emphasis

supplied)

Substituting "rule amendment" for "statute," the same can be

said for Gwong.

the Decision Below Unnecessarily Infringes on

Florida’s Right to Manage Its Prisons

When reviewing prison rules and regulations such as the

one at issue here, this Court accords great deference to

* As noted in Weaver, 450 U.S. at 28, 101 S. Ct. at 964: "Through

this [ex post facto] prohibition, the Framers sought to assure that legislative

Acts give fair warning of their effect and permit individuals to rely on their

meaning until explicitly changed.”

decisions of prison administrators. Lewis v. Casey, 518 U:S.

__» 116 S. Ct. 2174 (1996); Thornburgh v. Abbott, 490 U.S.

402 (1989); O'Lone v. Estate of Shabazz, 482 U.S. 342 (1987);

Turner v. Saftey, 482 U.S. 78 (1987). In particular, the Turner

Court noted that prison administration is the responsibility of

the legislative and executive branches of government and that

"separation of powers concerns counsel a policy of judicial

restraint" in such matters. Id. 482 U.S. at 85. The Court then

held that:

[W]hen a prison regulation impinges on

inmates’ constitutional rights, the regulation is

valid if it is reasonably related to legitimate

penological interests. In our view, such a

standard is necessary if prison administrators .

- -, and not the courts, [are] to make the

difficult judgments concerning institutional

operations." Jones v. North Carolina Prisoners’

Union, 433 U.S., at 128, 97 S. Ct., at 2539.

Subjecting the day-to-day judgments of prison

officials to an inflexible strict scrutiny analysis

would seriously hamper _ their ability to

anticipate security problems and to adopt

innovative solutions to the intractable problems

of prison administration. (emphasis supplied)

Id. 482 U.S. at 89.

In Florida, incentive gain-time is simply a remedial,

administrative prison management tool created by the

Legislature and used by FDOC to 1) promote order and

rehabilitation by inducing good behavior from inmates, 2)

maximize internal security, and 3) achieve the highest and best

use of limited prison beds by holding the most dangerous

offenders longer while lesser offenders gain earlier release. All

of these objectives are legitimate penological interests of the

state. Procunier v. Martinez, 416 U.S. 396 (1974) (a state has

a substantial governmental interest in security, order and

rehabilitation inside prisons); Pell v. Procunier, 417 U.S. 817,

823 (1974) ("central to all other correctional goals is the

institutional consideration of internal security within the

corrections facilities themselves"); and Shifrin v. Fields, 39

F.3d 1112 at 1114 (10th Cir. 1994) (a state’s decision to

withhold emergency time credits from violent or repeat

offenders is "rationally related to legitimate penological

concerns").

Without question, the Florida Legislature intended that

Petitioner, a correctional professional, exercise his best

professional judgment and discretion when adopting the

administrative rules setting forth how FDOC would grant gain-

time to deserving inmates.? The rule amendment in question

implements the discretionary, remedial statute, subsection

944 .275(4)(b), Florida Statutes (1985), in effect when Gwong

committed his crime.

Under the collective reasoning of Lewis, Thornborough,

O’Lone and Turner, cited above, Florida’s legitimate

penological interests in the mechanics of granting incentive

gain-time are all the more compelling since neither Gwong nor

a similarly situated inmate has a constitutional right that is

affected by FDOC’s policy decision to prohibit these inmates

from accruing additional incentive gain-time. The court below

erred by unnecessarily trespassing on Florida’s right to

properly manage its prisons.

* Under the Florida Administrative Procedures Act, an agency

policy of general applicability must be set forth in an administrative rule.

Chapter 120, Florida Statutes.

CONCLUSION

This Court should grant certiorari and quash the opinion

below or, in the alternative, remand this case to the Supreme

Court of Florida for reconsideration in light of this Court’s

anticipated ruling in Lynce v. Mathis, et al. No. 95-7542.

argued November 4, 1996.

RESPECTFULLY SUBMITTED,

ROBERT A. BUTTERWORTH

ATTORNEY GENERAL

MARTY E. MOORE

Deputy General Counsel

Attorney General’s Office

PL-01, The Capitol

Tallahassee, Florida 32399-1050

(904) 487-1963

(904) 487-2564 (FAX)

Fla. Bar No. 310921

Counsel of record on behalf of

Petitioner, Harry K. Singletary, Jr.

Case No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term 1996

HARRY K. SINGLETARY, Jr., Secretary,

Florida Department of Corrections,

Petitioner

RICHARD BING GWONG,

Respondent

PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF FLORIDA

APPENDIX

ROBERT A. BUTTERWORTH

ATTORNEY GENERAL

MARTY E. MOORE

Deputy General Counsel

ATTORNEY GENERAL’S OFFICE

PL-01, The Capitol

Tallahassee, FL 32399-1050

(904) 487-1963

Counsel for Petitioner

peta tn a nn ee

! TABLE OF CONTENTS

Opinion, October 10, 1996

supreme Court of Floridia................ccccccccsseceee Al

Opinion Denying Rehearing

supreme Court of Florida..................0c0cscsseees Al2

Section 944.275,

IE TINE CEST Dic sicscvicucccccsvccdbecacoceccs Al6

Rule 33-11.0065(1),

Florida Administrative Code.................ccce0000. Al9

Respondent’s Motion for Rehearing,

Clarification and Issuance of Order

Staying Finality of Opinion Pending

Review by United States Supreme Court........... A32

wee Aaa NE La

Supreme Court of Florida

No. 87,824

RICHARD BING GWONG,

Petitioner,

VS.

HARRY K. SINGLETARY, JR.., etc.,

Respondent.

[October 10, 1996]

OVERTON, J.

We have for review Richard Bing Gwong's petition for

writ of mandamus, in which he asks this Court to require the

Florida Department of Corrections (the department) to make

incentive gain-time available to certain inmates currently being

denied eligibility for such gain-time by Florida Administrative

Code Rule 33-11.0065 (1996). We have jurisdiction. Art. V,

§ 3(b)(8), Fla. Const. The rule amendment contested by

Gwong retroactively denies to certain prisoners, who have 85%

or less of their prison sentences remaining, the ability to earn

A-1

incentive gain-time. For the reasons expressed, we find that

the United States Supreme Court's opinion in Weaver v.

Graham, 450 U.S. 24, 101 S. Ct. 960, 67 L. Ed. 2d 17 (1981),

and our opinion in Waldrup v. Dugger, 562 So. 2d 687 (Fla.

1990), mandate that we grant the petition.

Gwong is currently serving a twenty-two-year sentence

imposed as a result of his second-degree murder conviction for

a homicide committed on January 13, 1987. He was sentenced

on February 24, 1989. He has less than 85% of his sentence

remaining. On the date that Gwong committed his offense, the

law provided that he was eligible to earn incentive gain-time.'

Specifically, section 944.275(4)(b), Florida Statutes (1985),’

stated:

For each month in which a prisoner

works diligently, participates in training, uses

time constructively, or otherwise engages in

positive activities, the department may grant up

to 20 days of incentive gain-time, which shall be

credited and applied monthly.

1Inmates convicted of offenses committed between July 1, 1978,

and June 14, 1983, are eligible to receive work and extra gain-time under

the prior provisions of section 944.275(2)(b) and (3){a), Florida Statutes

(1979). In 1983, the legislature simplified the gain-time statute and replaced

the terms "work" and "extra" gain-time with the term “incentive” gain-time.

§ 944.275(4)(b), Fla. Stat. (1983). In this opinion, we collectively refer to

all three types of gain-time as incentive gain-time.

2Section 944.275 was amended in 1993 and 1995 to alter the

amount of gain-time the department is authorized to award. Those

amendments are not applicable to Gwong given that his crime was

committed before the effective dates of those amendments. See Waldrup v.

Dugger, 562 So. 2d 687 (Fla. 1990).

A-2

In 1996, the Attorney General issued an opinion concluding

that the department could exercise its "discretion" under the

Statute by adopting a rule that prohibited certain classes of

inmates from receiving incentive gain-time. Op. Att'y Gen.

Fla. 96-22 (1996). Based on this opinion, the department

amended rule 33-11.0065, effective April 21, 1996, to read in

pertinent part as follows:

(1) Ineligibility.

(a) No inmate shall receive or

accumulate incentive gain time:

(Amendment emphasized by underlining.) Through this

amendment, the department has implemented the "85% rule"

for certain classes of prisoners based on its discretionary

authority under the statute. The department has determined

that any defendant who has been convicted of any offense set

forth in subsection (1)(a)6.a.-g. and who has 85% or less of

any sentence remaining to be served, shall be ineligible to

receive incentive gain-time. The department has advised the

Court that more than 20,000 inmates are immediately impacted

by this amendment to the rule.

Gwong alleges that the amendment violates the

prohibition against ex post facto laws contained in article I,

section 10, clause 1, of the United States Constitution.?> Based

on his assertions, he asks this Court to issue a writ of

mandamus ordering the department to make incentive gain-time

available to him as it existed at the time he committed his

offense.

In evaluating whether a law violates the ex post facto

clause, a two-prong test must be applied: (1) whether the law

is retrospective in its effect; and (2) whether the law alters the

definition of criminal conduct or increases the penalty by which

a crime is punishable. California Dep't of Corrections v.

Morales, 115 S. Ct. 1597, 131 L. Ed 2d 588 (1995). In

>Article I, section 10, clause 1 provides:

No State shall enter into any Treaty, Alliance, or

Confederation; grant Letters of Marque and Reprisal; coin

Money; emit Bills of Credit; make any Thing but gold and

silver Coin a Tender in Payment of Debts; pass any Bill

of Attainder, ex post facto Law, or Law impairing the

Obligation of Contracts, or grant any Title of Nobility.

(Emphasis added.)

applying this test to the instant case, we are presented with

nearly the identical situation we evaluated in Waldrup vy.

Dugger, 562 So. 2d 687 (Fla. 1990). In Waldrup, the prisoner

had been sentenced for crimes committed in 1980 and 1982.

In 1983, the legislature amended section 944.275 to decrease

the possible award of incentive gain-time, which, in turn, had

the effect of possibly increasing the prisoner's sentence. We

first concluded that the change in the statute operated

retrospectively because it applied to a large class of inmates

whose offenses occurred before its effective date. Under the

second prong, we concluded that the statute was ex post facto

because it was more onerous than the law in effect on the date

of the offense. See Weaver v. Graham, 450 U.S. 24, 101 S.

Ct. 960, 67 L. Ed. 2d 17 (1981). This was true even though

a prisoner had but a "mere expectancy" in the availability of

incentive gain-time. 450 U.S. at 30 (a law need not impair a

"vested right" to violate the ex post facto prohibition; it need

only make the punishment more onerous than the law in effect

at the time the offense was committed). This is because "a

prisoner's eligibility for reduced imprisonment is a significant

factor entering into both the defendant's decision to plea

bargain and the judge's calculation of the sentence to be

imposed." 450 U.S. at 32. Like the situation in both Waldrup

and Weaver, the instant rule amendment (1) applies to a class

of inmates who committed their offenses before the

amendment's effective date and (2) acts to enhance the measure

of punishment because it eliminates the ability of an inmate to

earn incentive gain-time credits.

In comparing the instant case to Waldrup and Weaver,

we note that the United States Supreme Court has somewhat

altered the second prong from how it was set forth in those

cases. See Morales; Collins v. Youngblood, 497 U.S. 37, 100

S. Ct. 2715, 111 L. Ed. 2d 30 (1990). In Weaver, the Court

concluded that a law violated the ex post facto clause if it

A-6

retrospectively "disadvantaged" a prisoner. In Waldrup, we

applied this same terminology. In Collins, however, the

United States Supreme Court stated that a law is ex post facto

if it punishes as a crime an act previously committed which was

innocent when done, makes more burdensome the punishment

for a crime after its commission, or deprives one charged with

a crime of any defenses available according to the law at the

time the act was committed. In Morales, the Court

subsequently concluded that a law must do more than simply

"disadvantage" an inmate to violate the ex post facto clause.

The Court stated that a law violates the ex post facto clause if

it (1) operates retrospectively and (2) alters the definition of

criminal conduct or increases the penalty by which a crime is

punishable as set forth in Collins. Morales, 115 S. Ct. at 1602

n.3. The Court noted, however, that, in situations like those

at issue in Weaver, the clause was violated because the new

law enhanced the measure of punishment by altering the

available gain-time. Id. at 1601-02. Likewise, the rule

amendment in the instant case, as did the statute in Waldrup,

retrospectively enhances the measure of punishment by altering

the available gain-time.

The department argues that Waldrup and Weaver are

distinguishable because they both deal with changes in the law,

whereas here we are confronted with a change in an

administrative rule. The department maintains that the

amendment is merely a policy decision, which is being

instituted under the broad grant of discretion awarded to the

department under the statute. According to the department,

awards of incentive gain-time are totally within its discretion

and nothing in the statute prohibits it from making distinctions

among inmates. In fact, the department maintains that nothing

in the statute mandates that it exercise its discretion at all.

Thus, the department contends that the ex post facto clause is

not implicated. In furtherance of its position, the department

points to this Court's opinion in Waldrup, in which we stated:

Nothing in this opinion, however, shall

be read as restricting the discretion accorded

[the department] under the earlier incentive gain

time statutes. This discretion remains intact. If

{the department] withholds all or some of the

incentive gain time available to Waldrup or

similarly situated inmates under the earlier

statutes, then [the department's] actions cannot

be challenged unless they constitute an abuse of

discretion.

562 So. 2d at 692-93. The department also contends that the

United States Supreme Court's recent opinion in Morales and

the Eleventh Circuit Court of Appeal's opinions in Conlogue

y. Shinbaum, 949 F.2d 378 (11th Cir. 1991), and Paschal v.

Wainwright, 738 F.2d 1173 (11th Cir. 1984), provide that an

administrative rule implemented in furtherance of a

department's discretion does not implicate the ex post facto

clause. We disagree.

First, the department misconstrues the above-quoted

portion of our opinion in Waldrup. In that case, we were

emphasizing that, although the amendments could not be

retrospectively applied, the department could still properly

deny gain-time to those inmates whom it found, in its

discretion, did not qualify for gain-time because of

unsatisfactory work or improper conduct. In no way did we

intend for our language in that opinion to provide the

department with the authority to completely refuse to exercise

its discretion at all for certain categories of prisoners. As the

Eleventh Circuit Court of Appeals stated in Raske v. Martinez,

876 F.2d 1496 (11th Cir.), cert. denied, 493 U.S. 993, 110S.

A-8

Ct. 543, 107 L. Ed. 2d 540 (1989), the discretion afforded the

department is not absolute. For example, a prisoner who has

performed his work in an outstanding manner cannot legally be

denied incentive gain-time for that work, despite the discretion

afforded the department. Jd. at 1499 n.6. In other words, "the

department is the judge of whether [the conditions set forth in

the statute] have been met.” Id. at 1499.

Further, the facts of the instant case are distinguishable

from those in Paschal and Morales. In those cases, it was

determined that: the parole procedures could be amended

because they merely altered the method to be followed in fixing

a parole date. Here, the procedure for implementing the award

of gain-time has not merely been altered; it has been changed

to completely eliminate the ability of certain classes of inmates

to receive gain-time even if they carry out their work in an

Outstanding manner as provided by the statute.

The rule is likewise distinguishable from the regulation

at issue in Conlogue. In that case, an administrative regulation

was promulgated setting forth the basis for determining a

prisoner's eligibility for incentive good time, which is similar

to the gain-time at issue. The regulation in effect at the time

the inmate committed his crime provided that any inmate whose

psychological or sociological profile contraindicated an early

release back to society would not receive the gain-time. After

the inmate was incarcerated, the following provision was added

to the regulation: "Since criminal record is an important

element of sociological profile, repeated convictions for violent

crimes against persons may be a contraindication to award of

[gain-time] status." 949 F.2d at 380. The Eleventh Circuit

found that the amendment was properly adopted because it was

merely a procedural amendment, which provided a more

refined definition for the terms "psychological or sociological

profile." In fact, the Eleventh Circuit specifically distinguished

A-9

the case from that in Weaver by finding that the regulation at

issue did not involve a Weaver- type regulation that drastically

reduced the gain-time an inmate could earn. — 949

F.2d at 381 n.9.

By amending the rule, the department seeks to do what

the legislature cannot even though the department itself is

created by the legislature and acts in a quasi-legislative

capacity. As the department conceded at oral argument, if the

legislature had passed a statute retrospectively eliminating

Gwong's eligibility for incentive gain-time, the statute would

violate the ex post facto clause. Simply because the

amendment is an administrative regulation rather than a law

does not alter the application of the ex post facto clause. Such

an argument fails to "acknowledge that it is the effect, not the

form, of the law that determines whether it is ex post facto.”

Weaver, 450 U.S. at 31.

Given that the amendment (1) applies to a class of

inmates who committed their offenses before the amendment's

effective date and (2) acts to enhance the measure of

punishment because it eliminates the ability of certain inmates

to earn incentive gain-time credits, we are compelled to

conclude that it violates the ex post facto prohibition.

Accordingly, for the foregoing reasons, we grant

Gwong's petition, holding that upon this opinion's becoming

final, the department shall be barred from applying the

amendment to inmates convicted of offenses occurring before

its effective date. Consistent with this opinion, we also

disapprove Attorney General Opinion 96-22. Because we trust

that the department will fully comply with the dictates of this

opinion, we withhold issuance of the writ.

It is so ordered.

KOGAN, C.J., and SHAW, GRIMES, HARDING and

ANSTEAD, JJ., concur.

WELLS, J., concurs in result only.

NOT FINAL UNTIL TIME EXPIRES TO FILE

REHEARING MOTION AND, IF FILED, DETERMINED.

Original Proceeding - Mandamus

Baya Harrison, III, Monticello, Florida,

for Petitioner

Louis A. Vargas, General Counsel and Susan A. Maher,

Deputy General Counsel, Department of Corrections,

Tallahassee, Florida,

for Respondent

Robert A. Butterworth, Attorney General; and Jason Vail and

Joslyn Wilson, Assistant Attorneys General, Tallahassee,

Florida,

for Amicus Curiae, the Office of the Attorney General

Supreme Court of Florida

No. 87,824

RICHARD BING GWONG, Petitioner,

vs.

HARRY K. SINGLETARY, JR., etc.,

Respondent.

ON REHEARING

[November 22, 1996]

OVERTON, J.

We deny rehearing.

In our 1979 decision in Harris v. Wainwright, 376 So. 2d

855 (Fla. 1979), we expressly adopted the view asserted by the

State of Florida and rejected a prisoner's claim that the ex post

facto clause prohibited the State from retroactively applying a

more restrictive gain-time statute even though the statute had

the effect of lengthening the defendant's sentence. In Harris,

consistent with the State's position, we held that gain-time

A-12

Statutes were a matter of legislative or executive grace and that

the ex post facto clause was inapplicable. On the same date

that we issued our opinion in Harris, we summarily denied the

petition for writ of habeas corpus filed in Weaver v. Graham,

376 So. 2d 855 (Fla. 1979), relying on our decision in Harris.

The United States Supreme Court then unanimously

reversed our decision in Harris in Weaver v. Graham, 450

U.S. 24, 101 S. Ct. 960, 67 L. Ed. 2d 17 (1981). It rejected

the grace theory and held that changes, such as those at issue,

in incentive gain-time statutes result in an increase in the

inmate's penalty, and, consequently, violate the ex post facto

clause. While the United States Supreme Court did somewhat

alter the standard for reviewing ex post facto cases in

iforni » 115 S. Ct.

1597, 131 L. Ed. 2d 588 (1995), the Court specifically upheld

the result it reached in Weaver. It is very clear that the holding

of the United States Supreme Court in Weaver is still the law

of this land, whether we like it or not. We can neither ignore

nor avoid the express dictates of the United States Supreme

Court in its holding in Weaver.

In the State's petition for rehearing, it requests that we

issue an order indefinitely staying the finality of our opinion in

this cause pending review by the United States Supreme Court,

on the basis that the Court has granted review in Lynce v.

Mathis, 116 S. Ct. 1671 (1996)(order granting certiorari).

According to the State, the State is asking the United States

Supreme Court in Lynce to revisit and recede from its decision

in Weaver. Granting the requested stay would allow the

Department of Corrections to continue implementing the

administrative rule that, under the United States Supreme

Court's decision in Weaver, is Clearly unconstitutional. In

examining the State's request, it is important to note that the

type of gain time being reviewed in Lynce is significantly

A-13

different from that at issue here. In Lynce, the issue involves

the ex post facto clause as it applies to administrative gain time

and provisional credits. The decision in the instant cause

involves incentive gain time. These are two distinct types of

gain time. We have both explained the different types of gain

time and held that administrative gain time and provisional

credits are awarded solely for the administrative convenience

of the Department of Corrections to alleviate prison

overcrowding and are in no way tied to the overall length of an

inmate's sentence; consequently, the ex post facto clause does

not apply. Dugger v. Grant, 610 So. 2d 428 (Fla. 1992);

Dugger 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

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

Incentive or earned gain-time credits, on the other hand,

involve quantifiable elements of the length of a prisoner's

sentence and are the type of gain time involved in Weaver.

The United States Supreme Court's decision in Weaver is

presently the law and, consequently, we are compelled to deny

the State's request for an indefinite stay pending that Court's

decision in Lynce. Because we trust that the department will

fully comply with the dictates of this opinion, we withhold

issuance of the writ.

It is so ordered.

KOGAN, C.J., and SHAW, GRIMES and WELLS, JJ.,

concur.

HARDING and ANSTEAD, JJ., concur in result.

NO MOTION FOR REHEARING WILL BE ALLOWED.

Original Proceeding - Mandamus

Baya Harrison, III, Monticello, Florida,

for Petitioner

Louis A. Vargas, General Counsel and Susan A. Maher,

Deputy General Counsel, Department of Corrections,

Tallahassee, Florida; and Robert A. Butterworth, Attorney

General; Marty E. Moore, Deputy General Counsel; and Jason

Vail and Joslyn Wilson, Assistant Attorneys General,

Tallahassee, Florida,

for Respondent

FLORIDA STATUTES (1985)

CHAPTER 944 STATE CORRECTIONAL SYSTEM

944.275 Gain time. --

(1) The department is authorized to grant deductions from

sentences in the form of gain-time in order 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.

(2)(a) The department shall establish for each prisoner

sentenced to a term of years a “maximum sentence expiration

date,” which shall be the date when the sentence or combined

sentences imposed on a prisoner will expire. In establishing

this date, the department shall reduce the total time to be

served by any time lawfully credited.

(b) When a prisoner with an established maximum

sentence expiration date is sentenced to an additicnal term or

terms without having been released from custody, the

department shall extend the maximum sentence expiration date

by the length of time imposed in the new sentence or sentences,

less lawful credits.

returned to the custody of the department, the maximum

sentence expiration date in effect when the escape occurred or

the parole was effective shall be extended by the amount of

time the prisoner was not in custody plus the time imposed in

any new sentence or sentences, but reduced by an lawful

credits.

(3)(a) The department shall also establish for each

prisoner sentenced to a term of years a “tentative release date”

which shall be the date projected for the prisoner’s release from

custody by virtue of gain-time granted or forfeited as described

in this section. The initial tentative release date shall be

determined by deducting basic gain-time granted from the

maximum sentence expiration date. Other gain-time shall be

A-16

applied when granted or restored to make the tentative release

date proportionately earlier; and forfeitures of gain-time, when

ordered, shall be applied to make the tentative release date

proportionately later.

(b) When an initial tentative release date is reestablished

because of additional sentences imposed before the prisoner has

completely served all prior sentences, any gain-time granted

during service of a prior sentence and not forfeited shall be

applied.

maximum sentence expiration date.

(4)(a)As a means of encouraging satisfactory behavior, the

department shall grant basic gain-time at the rate of 10 days

for each month of each sentence imposed on a prisoner, subject

to the following:

1. Portions of any sentences to be served concurrently

shall be treated as a single sentence when determining basic

gain-time.

2. Basic gain-time for a partial month shall be prorated on

the basis of a 30-day month.

3. When a prisoner receives a new maximum sentence

expiration date because of additional sentences imposed, basic

gain-time shall be granted for the amount of time the maximum

sentence expiration date was extended.

(b) For each month in which a prisoner works diligently,

participates in training, uses time constructively, or otherwise

engages in positive activities, the department may grant up to

20 days of incentive gain-time, which shall be credited and

applied monthly.

as saving a life or assisting in recapturing an escaped inmate,

or who in some manner performs an outstanding service that

would merit the granting of additional deductions from the term

of his sentence may be granted meritorious gain-time of from

1 to 60 days.

(5) When a prisoner is found guilty of an infraction of the

laws of this state or the rules of the department, gain-time may

be forfeited according to law.

(6)(a) Basic gain-time under this section shall be computed

on and applied to all sentences imposed for offenses committed

on or after July 1, 1978.

(b) On the effective date of the act, all incentive and

meritorious gain-time shall be granted according to the

provisions of this act.

former subsections (2) and (3) and all forfeitures ordered prior

to the effective date of this act shall remain in effect and be

applied in establishing an initial tentative release date.

(7) The department shall promulgate rules to implement

the granting, forfeiture, and restoration of gain-time.

(Emphasis supplied.)

FLORIDA ADMINISTRATIVE CODE

TITLE 33 DEPARTMENT OF CORRECTIONS

CHAPTER 33-11 MODIFICATION OF SENTENCES

33-11.0065 Incentive Gain Time.‘

(1) Ineligibility.

(a) No inmate shall receive or accumulate incentive gain

time:

1. For the minimum portion of a sentence imposed

pursuant to s.775.087(2), F.S., for an offense committed on or

after October 1, 1976 involving use or possession of a firearm,

machine gun, or destructive device as defined in s. 775.087,

F.S.;

2. For the minimum portion of a drug sentence imposed

pursuant to s.893.13(1)(e), F.S. (1989), for a specified

drug-related offense committed on or after June 27, 1989, but

before January 1, 1994, in, on, or within 1,000 feet of a

school;

3. If sentenced under s. 893.13(1)(I)1. for a specified

drug-related offense committed prior to January 1, 1994 in, on,

or within 200 feet of real properties, described in s. 893.13,

F.S.;

4. For the period of time remaining in any treatment

program placement term imposed under s. 953.11, F.S.

5. If convicted of offenses committed on or after October

1, 1995 and has 85% or less of the sentence remaining to be

served.

6. If convicted of any of the following offenses committed

before October 1, 1995 and has 85% or less of any sentence

remaining to be served. The provisions of (1)(a)6. shall also

apply to work, extra and constructive gain time for inmates

* The text of the 1996 amendment is in italics. Graphics that

supplement the text of subsection (2), entitled "Eligibility," have been

omitted.

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convicted of offenses committed between July 1, 1978 and June

14, 1983. The provisions of (1)(a)6. shall not apply to

educational gain time under s. 944.801, F.S., or to meritorious

or educational achievement incentive gain time.

a. Is convicted or has been previously convicted, of

committing or attempting to commit sexual battery or any of the

following lewd or indecent assaults or acts: masturbating in

public; exposing the sexual organs in a perverted manner; or

nonconsensual handling or fondling of the sexual organs of

another person;

b. Is convicted, or has been previously convicted, of

committing or attempting to commit assault, aggravated

assault, battery or aggravated battery, and a sex act was

attempted or completed during commission of the offense;

c. Is convicted, or has been previously convicted, of

committing or attempting to commit kidnapping;

d. Is convicted, or has been previously convicted, of

committing or attempting to commit false imprisonment upon a

child under the age of 13 and, in the course of committing the

offense, the inmate committed aggravated child abuse; sexual

battery against the child; or a lewd, lascivious, or indecent

assault or act upon or in the presence of the child;

e. Is convicted, or has been previously convicted, of

committing or attempting to commit murder in the first, second,

or third degree under s. 782.04(1), (2), (3), or (4); or has ever

been convicted of any degree of murder in another jurisdiction;

f. Is convicted, or has been previously convicted, of

committing or attempting to commit offenses under s. 827.03,

827.071(2) or (3) or 847.0145, Florida Statutes.

g. Is convicted, or has been previously convicted, of

conspiracy or solicitation to commit any offense listed in a.

through f. above.

(b) An inmate shall not be eligible for incentive gain time

in an amount which would cause a sentence to expire prior to

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such inmate having served the minimum or mandatory

minimum portion of a sentence imposed pursuant to:

1. s. 775.0823, F.S., for specified crimes committed

against a law enforcement officer, state attorney, or assistant

State attorney on or after January 1, 1990 but prior to January

1, 1994, or against a judge or justice of a court described in

Article V of the State Constitution on or after October 1, 1990

but prior to January 1, 1994:

2. s. 775.084(4)(b), F.S., as a habitual violent felony

offender for an offense committed on or after October 1, 1988;

3. s. 775.0875(1), F.S., for taking a firearm from a law

enforcement officer while such officer was lawfully engaged in

law enforcement duties in those instances where such offense

was committed prior to January 1, 1994.

in an amount which would cause a sentence to expire prior to

such inmate having served the period of time for which the

court has retained jurisdiction pursuant to s. 947.16(4), F.S.

(2) Eligibility. All other inmates not excluded in

paragraph (1) or (5) of this section, including those in the

custody of another agency while actively serving a Florida

sentence in accordance with the Interstate Corrections Compact

or designated pursuant to section 921.16(2), F.S.. may be

awarded incentive gain time pursuant to 33-11.0065(3).

(3) How credited. For inmates eligible to receive

consideration under this section, the following procedures shall

be used.

(a) Each inmate eligible for consideration for award of

incentive gain time shall receive gain time evaluations based

upon his institutional adjustment as reflected in evaluations

from security, work and program components, if assigned. If

it becomes necessary to make corrections

to the inmate's monthly security, work or program evaluations

after the evaluations have already been submitted, the request

for correction along with the reasons for the correction shall be

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submitted in writing to the department head for approval. The

approved corrections shall be submitted to the correctional

probation officer or his designee who shall make the necessary

changes.

1. The security evaluation is the rating of an inmate's

institutional adjustment that includes evaluation of all areas of

daily institutional routine with the exception of the inmate's

work and program assignments. The security rating for the

month shall be determined through the review of the four

security behavioral objectives, while considering the inmate's

capabilities. The security rating is to be determined by

observations of the evaluator, notations on the inmate's

Housing Officer Contact Card as referenced in Rule 33-3.0075,

and information from other staff sources regarding the inmate's

behavior. The employee completing the security evaluation

shall not complete the inmate's performance evaluation for the

same month. The following security behavioral objectives shall

be considered when completing the monthly security rating:

a. Hygiene: grooming and personal cleanliness.

b. Appearance: care of issued clothing and compliance

with uniform regulations.

c. Conduct: adherence to rules, regulations, procedures,

and orders and respect for others.

d. Maintenance of living quarters: appearance and

cleanliness of assigned living area.

2. The performance evaluation is the rating of the

inmate's performance in work and program assignments. The

monthly performance rating shall be determined through the

review of the five performance behavioral objectives, while

considering the inmate's capabilities. In a month in which an

inmate has more than one full time assignment, the assignment

of the longest duration shall be utilized for determining the

inmate's monthly performance evaluation. In a month in which

the full or half time assignments are of equal duration, the

assignment closest to the end of the month shall be utilized to

A-22

determine the inmate's monthly performance evaluation. In a

month in which an inmate has any half time assignments, both

half time evaluations shall be completed. The half time

assignment of the longest duration in both a.m. time period and

the p.m. time period shall be utilized for determining the

inmate's performance evaluation. In determining the work and

program performance evaluation for the half time assignments,

the work and program rating reflects the same rating as the two

half time assignments if the ratings are the same. If the two half

time ratings are different, the overall work and program

evaluation shall reflect the lesser of the two ratings, except if

one rating is outstanding and the other is satisfactory then the

inmate's rating shall be above satisfactory. The employee

completing the work or program performance evaluation shall

not be the same employee completing the security evaluation.

The following behavioral objectives shall be considered when

evaluating the monthly work and program rating:

a. Conduct in program and work assignment: adherence

to rules, regulations, procedures, and orders and demonstration

of respect for others.

b. Interaction with others: degree to which inmate works

and participates with others to accomplish required tasks.

c. Motivation for personal development and improvement:

degree of interest displayed in improving skills and increasing

capabilities.

d. Work and study habits: willingness to accomplish tasks

without being prompted.

e. Constructive use of time: promptness in reporting to

assigned area and effective use of time.

3. The security and performance evaluation provides the

preliminary base gain time recommendation for the inmate in

the following amounts. These amounts are contingent on the

performance evaluations derived from work and programs and

the security evaluation unless modified in accordance with rule

33-11.0065(3)(b).

a. When either evaluation is unsatisfactory, the

preliminary base gain time recommendation shall be zero days.

b. When both evaluations are satisfactory, the preliminary

base gain time recommendation shall be as follows:

I. An inmate convicted of an offense committed prior to

10-1-95 shall receive a preliminary base gain time

recommendation of 8 days.

ii. An inmate convicted of an offense committed on or

after 10-1-95 and not sentenced as a violent career criminal

shall receive a preliminary base gain time recommendation of

4 days.

iii. An inmate convicted of an offense committed on or

after 10-1-95 and sentenced as a violent career criminal shall

receive a preliminary base gain time recommendation of 2

days.

c. When one evaluation is above satisfactory and the other

is satisfactory, the preliminary base gain time recommendation

shall be as follows:

I. An inmate convicted of an offense committed prior to

10-1-95 shall receive a preliminary base gain time

recommendation of 12 days.

ii. An inmate convicted of an offense committed on or

after 10-1-95 and not sentenced as a violent career criminal

shall receive a preliminary base gain time recommendation of

6 days.

iii. An inmate convicted of an offense committed on or

after 10-1-95 and sentenced as a violent career criminal shall

receive a preliminary base gain time recommendation of 3

days.

d. When both evaluations are above satisfactory, the

preliminary base gain time recommendation shall be as follows:

I. Inmates convicted of an offense occurring on or after

1-1-94 and prior to 10-1-95 which falls within the sentencing

guidelines offense severity ranking chart (921.0012, F.S.) level

from 1 through 7 shall receive a preliminary base gain time

recommendation of 22 days.

li. Inmates convicted of an offense occurring on or after

1-1-94 and prior to 10-1-95 which falls within the sentencing

guidelines offense severity chart level from 8 through 10 shall

receive a preliminary base gain time recommendation of 16

days.

iii. Inmates convicted of an offense occurring prior to

1-1-94 shall receive a preliminary base gain time award of 16

days.

iv. An inmate convicted of an offense committed on or

after 10-1-95 and not sentenced as a violent career criminal

shall receive a preliminary base gain time recommendation of

8 days.

v. An inmate convicted of an offense committed on or

after 10-1-95 and sentenced as a violent career criminal shall

receive a preliminary base gain time recommendation of 4

days.

4. If an inmate has no work or program evaluation for the

month the inmate shall be evaluated for the preliminary base

gain time recommendation based upon the security evaluation

in the following amounts unless modified in accordance with

(3)(b) of this rule:

a. When the security evaluation is unsatisfactory, the

preliminary base gain time recommendation shall be zero days.

b. When the security evaluation is satisfactory, the

preliminary base gain time recommendation shall be as follows:

I. An inmate convicted of an offense committed prior to

10-1-95 shall receive a preliminary base gain time

recommendation of 4 days.

ii. An inmate convicted of an offense committed on or

after 10-1-95 and not sentenced as a violent career criminal

shall receive a preliminary base gain time recommendation of

2 days.

iii. An inmate convicted of an offense committed on or

after 10-1-95 and sentenced as a violent career criminal shall

receive a preliminary base gain time recommendation of 1 day.

c. When the security evaluation is above satisfactory, the

preliminary base gain time recommendations shall be as

follows:

I. Inmates convicted of an offense occurring prior to

1-1-94 shall receive a preliminary base gain time

recommendation of 8 days, unless otherwise modified in

accordance with this rule.

ii. Inmates convicted of an offense occurring on or after

1-1-94 and prior to 10-1-95 which falls within the sentencing

guidelines offense severity chart level from 1 through 7 shall

receive a preliminary base gain time recommendation of 11

days, unless modified in accordance

with this rule.

iii. Inmates convicted of an offense occurring on or after

1-1-94 and prior to 10-1-95 which falls within the sentencing

guidelines offense severity chart level from 8 through 10 shall

receive a preliminary base gain time recommendation of 8

days, unless otherwise modified in accordance with this rule.

iv. An inmate convicted of an offense committed on or

after 10-1-95 and not sentenced as a violent career criminal

shall receive a preliminary base gain time recommendation of

4 days.

v. An inmate convicted of an offense committed on or

after 10-1-95 and sentenced as a violent career criminal shall

receive a preliminary base gain time recommendation of 2

days.

(b) The correctional probation officer or designee shall

evaluate the security and performance ratings which reflect the

inmate's institutional adjustment for the month. The final

determination of an award of incentive gain time shall be

determined by the correctional probation officer or designee

and shall be based on the inmate's overall monthly activities.

A-26

Pee Se eg toe ee ee eee

When the correctional probation officer or designee concurs

with the preliminary base gain time recommendation being

applied no modification is required. The preliminary base gain

time recommendation may be modified by the correctional

probation officer as reflected by the inmates overall

institutional adjustment and level of work and program

participation for the month. The correctional probation officer

or designee may modify the preliminary base gain time

recommendation upward or downward from 1 to 4 days not to

exceed the maximum eligible award. Any time the correctional

probation officer or designee modifies the preliminary base

gain time recommendation, the reason for the modification

Shall be noted. These modifications will be applied to the

preliminary base gain time recommendation reflective of the

overall rating derived from the security and performance

evaluation or security evaluation alone.

Reasons for modification of the preliminary base gain time

recommendation include:

1. Modification upward of 1 -- 4 days:

a. Participation in recommended programs if available;

b. Adherence to program plan;

c. Work or Program stability;

d. Program achievement.

2. Modification Downward of 1 -- 4 days:

a. Not participating in recommended programs if

available;

b. Work or Program instability;

c. Not adhering to classification recommendations:

d. Assigned to work or program 14 days or less during

the month.

no inmate shall be considered as earning any incentive gain

time until the month is complete, the evaluations have been

submitted, and the award has been determined.

(4) When processed. Incentive gain time is to be

processed at the end of each month or upon receipt of progress

reports on inmates housed by other agencies. All incentive gain

time awards should be posted in the Offender Based

Information System by the close of business no later than the

12th of each month following the month of the award.

(a) Except in the case of extenuating circumstances,

inmates will receive written notice of the monthly gain time

award within three working days of the last scheduled posting

date. In addition, the next scheduled progress report will reflect

and summarize the awards of gain time made during the

reporting period.

(b) Inmate grievances related to the gain time award or the

failure to have received notice of the gain time award shall be

filed pursuant to the formal grievance process no later than the

end of the month the award is posted in accordance with Rule

33-29.005 for inmates in the department's custody at the end of

the month. Inmates who are out to court at the end of the

month shall file grievances related to the gain time award or the

failure to have received notice of the gain time award pursuant

to the formal grievance process no later than fifteen days from

the date of return to the department's custody.

the failure to have received notice of a monthly gain time

award, shall file a formal grievance relating to the gain time

award itself no later than fifteen days from the date of the

response to the formal grievance which addressed the failure to

have received notice.

(d) Grievances related to gain time awards for the months

prior to the adoption of this rule shall be filed no later than

August 1, 1994.

(5) Disqualifications. The following conditions will

disqualify an inmate for an award of incentive gain time for the

period stated.

ee Se ee eet yes

(a) Disciplinary or court action. An inmate is not eligible

to receive incentive gain time for the month in which there is

an infraction of the rules of the Department or the laws of the

State for which he is found guilty. Additionally, those inmates

on escape status and detained by other agencies may not be

awarded incentive gain time for the period of time out of

custody even though lodged in another confinement facility.

Any inmate who is found guilty of a disciplinary

report on or after January 1, 1996 shall be eligible to earn

incentive gain time as follows:

1. For disciplinary reports in which the final approved

action is not confinement or loss of earned gain time or where

the final recommended action is probation, pursuant to

33-22.008(3)(b), the inmate shall be eligible to earn incentive

gain time the month following the month in which the

disciplinary infraction occurred. However, if the inmate

violates the probation and the Original penalty meets the

requirements of subparagraphs 1. and 2. below, the inmate is

then subject to the limitations on earning incentive gain time as

noted.

2. For disciplinary reports in which the final approved

action is less than or equal to 30 days confinement or less than

or equal to 30 days loss of earned gain time, the inmate shall

not be eligible to earn incentive gain time for three consecutive

months following the month in which the disciplinary infraction

occurred.

3. For disciplinary reports in which the final approved

action is greater than 30 days confinement or greater than 30

days loss of earned gain time, or where the inmate was

convicted of an offense occurring while committed to the

Department of Corrections, the inmate shall not be eligible to

earn incentive gain time for six consecutive months following

the month in which the disciplinary infraction or offense

occurred.

4. The failure to serve the confinement imposed does not

alter the ineligibility of the inmate to earn incentive gain time

as noted in subparagraphs 2. and 3.

5. The ineligibility of the inmate to earn gain time as

noted in subparagraphs 2. and 3. remains in effect when, due

to unavailability of gain time, unearned gain time is designated

as the final approved action.

(b) Inmates who are out of the department's custody

during the month on escape, out to court status, or on furlough

shall not be eligible to receive incentive gain time for that

period of the month.

cannot be reduced by gain time. However, any inmate serving

a death or life sentence will be considered for incentive gain

time and the gain time will be posted so that in the event the

death or life sentence is commuted to a number of years, the

accumulated incentive gain time will be applied to the inmate's

sentence.

(6) Educational achievement incentive gain time. Upon

notification by the education supervisor or regional education

program administrator of a recommendation by the Office of

Education and Job Training, the department shall apply a one

time award of 60 additional days of incentive gain time to an

inmate who is otherwise eligible and who has successfully

completed requirements for and is awarded a general education

development certificate or vocational certificate. In order to be

eligible for the gain time award, the general education

development certificate or vocational certificate must be issued

by the Florida Department of Education or the program issuing

the certificate must be approved by the Office of Education and

Job Training in advance of the inmate's enrollment. Inmates

assigned to community facilities who earn a general education

development certificate or vocational certificate in an on site

educational program operated by an outside vendor or provider

(state community college, vocational technical center or private

A-30

institution) who is approved in advance by the Office of

Education and Job Training shall be recommended by the

regional educational program administrator for incentive gain

time for educational achievement. Under no circumstances may

an inmate receive more than 60 days gain time for educational

attainment pursuant to this section.

(7) Educational gain time. Upon notification by the

education supervisor or regional education program

administrator, the department shall grant a one time award of

up to 6 days of additional incentive gain time to all inmates

who are otherwise eligible and who have attended and

satisfactorily participated in 150 hours of functional literacy

instruction. The functional literacy instruction must be

provided by the Office of Education and Job Training teachers,

approved staff, or volunteers.

Specific Authority 20.315, 944.09, 944.275 FS.

Law Implemented 20.315, 944.09, 944.275 FS.

IN THE SUPREME COURT OF FLORIDA

RICHARD BING GWONG,

Petitioner,

v. CASE NO. 87,824

HARRY K. SINGLETARY, JR., Secretary,

Department of Corrections,

Respondent.

RESPONDENT’S MOTION FOR REHEARING,

CLARIFICATION AND ISSUANCE OF ORDER

STAYING FINALITY OF OPINION PENDING

REVIEW BY UNITED STATES SUPREME COURT

Attorney General ROBERT A. BUTTERWORTH, on

behalf of Respondent, HARRY K. SINGLETARY, JR.,

Secretary of the Florida Department of Corrections, pursuant

to Florida Rules of Appellate Procedure 9.300 and 9.330,

respectfully requests this Honorable Court to rehear this cause

and clarify its opinion dated October 10, 1996, for the purpose

of issuing an order staying finality of the opinion pending

review by the United States Supreme Court. As grounds,

Respondent says:

1. On October 10, 1996, this Court issued an opinion in

this cause barring application of the Department of Correction’s

A-32

a RO Set

Rule 33-11.0065 (1996), Florida Administrative Code,

prohibiting certain classes of inmates from receiving incentive

gain-time after the rule’s effective date.

2. The Court stated that it would withhold issuance of the

writ sought by Petitioner because of its confidence that the

Respondent “will fully comply with the dictates of this

opinion{.j" (Opinion, page 11). For the reasons stated below,

Respondent seeks an order staying finality of the opinion.

3. The basis for the Court’s decision in this cause was its

determination that the rule as applied to Petitioner, RICHARD

BING GWONG, and similarly situated inmates violated the Ex

Post Facto Clause of the United States Constitution. In the

opinion, this Court relied on Weaver v. Graham 450 U.S. 24,

101 S. Ct. 960, 67 L. Ed. 2d 17 (1981) and Waldrup v.

Dugger, 562 So. 2d 687 (Fla. 1990) while rejecting

Respondent’s assertion that the later decisions in California

Department of Corrections v. Morales, 115 S. Ct. 1597, 131

L. Ed. 2d 588 (1995) and Collins v. Youngblood, 497 U.S. 37,

110 S. Ct. 2715, 111 L. Ed. 2d 30 (1990) control.

4. The United States Supreme Court has accepted review

in Lynce v. Mathis et al., No. 95-7452, set for oral argument

November 4, 1996, involving the State of Florida’s revocation

of provisional credits and administrative gain-time awarded to

inmates as a means of relieving prison overcrowding. This

Court has upheld such revocations. Griffin v. Singletary, 638

So. 2d 500 (Fla. 1994).

5. In their briefs to the United_States Supreme Court in

Lynce, the parties set forth the question presented as follows:

A-33

A) Petitioner Lynce:

Whether the retroactive application of amended

Florida penal statute § 944.277 (1992) violates

the Ex Post Facto Clause of the United States

Constitution by withdrawing early release

credits previously awarded to petitioner under

the pre-amendment version of the statute, where

that withdrawal was based solely upon

petitioner’s 1985 offense of conviction.

B) Respondent Mathis:

Whether the retroactive application of Florida

Statute § 944.277 (Supp. 1992), by withdrawing

credits previously allocated petitioner for release

solely to alleviate prison overcrowding,

increases the punishment for petitioner’s 1985

offense of conviction in violation of the Ex Post

Facto Clause of the United States Constitution.

C) Respondent Butterworth:

During the years 1988-1993, when prison

population reached statutorily set limits, Florida

awarded inmates such as the petitioner

provisional credits, a form of "gain time"

intended solely to relieve prison overcrowding

by reducing inmates’ sentences. Between 1988

and 1991, the petitioner was given 1,860 days

of provisional credits. Then, in 1992, the

Florida Legislature revoked all provisional

credits given to inmates like the petitioner, who

A-34

we cans ae re |

aaa a aaa a a openers iiss scecscmsingia rau

had been convicted of violent crimes. Question:

whether that revocation violated the ex post

facto clause of the U.S. Constitution.

6. Clearly, the significant issue raised in Lynce is whether

the United States Supreme Court should restore reasoned

consistency to the application of the Ex Post Facto Clause in

criminal law by revisiting and receding from the court’s

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

67 L. Ed. 2d 17 (1981), and its progeny. In Weaver, the court

for the first time found that laws affecting gain-time -- a prison

Management tool -- would be governed by the Constitution’s ex

post facto prohibition. Traditionally, gain-time provisions

were viewed as a matter of legislative and executive grace; thus

modifications to those provisions were not subject io ex post

facto scrutiny. Harris v. Wainwright, 376 So. 2d 855 (Fla.

1979). See also Collins v. Youngblood, 497 U.S. 37, 41-52,

110 S.Ct. 2715, 2719-2724, 111 L.Ed.2d. 30 (1990), for a

historical analysis of the application of the Ex Post Facto

Clause to criminal statutes.

7. This Court’s decision in the instant case will be

substantially affected by the outcome of Lynce, regarding any

modifications to the Weaver decision and its progeny.

8. Moreover, the Attorney General, on behalf of the

Respondent, will be filing a petition for writ of certiorari in the

United States Supreme Court, seeking review of this Court’s

decision on federal constitutional grounds. The outcome of this

case affects prison release dates for many thousands of "violent

felony offenders" (Petition, page 4) as well as the safety and

welfare of all Floridians. It is respectfully requested that ihis

Court stay the effect of its decision until the United States

Supreme Court further examines the constitutional question of

the relationship between the Ex Post Facto Clause and statutory

prison management tools.

WHEREFORE, Respondent respectfully requests this

Honorable Court to rehear this cause, clarify its opinion dated

October 10, 1996, and issue an order staying finality of the

opinion pending review by the United States Supreme Court

Respectfully submitted this 22nd day of October,

1996.

ROBERT A. BUTTERWORTH

ATTORNEY GENERAL

MARTY E. MOORE

Deputy General Counsel

Fla. Bar # 310921

Attorney General’s Office

PL-01, The Capitol

Tallahassee, FL 32399-1050

(904) 487-1963

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