×
You have 2 more free articles available this month. Subscribe today.
Florida Supreme Court Strikes Down Gain Time Loss
The Florida supreme court held that a DOC Policy denying gain time to prisoners eligible to receive it at the time of their conviction violated the ex post facto clauses of the Florida and United States constitutions. In 1996 the Florida DOC amended Florida Administrative Code (FAC) rule 33-11.0065 to retroactively deny prisoners convicted of sex or violent offenses who had 85% or less of their sentences remaining, the ability to earn incentive gain time of 20 days per month. The rule change came, in part, to allow Florida to receive federal prison funds under the 1994 crime bill. See: December, 1994, PLN.
Richard Gwong, a Florida prisoner serving a 22 year sentence for second degree murder, filed a writ of mandamus asking the Florida supreme court to order the DOC to make incentive gain time available to those prisoners who were eligible to receive it at the time of their convictions whom the rule change affected. More than 20,000 Florida prisoners were affected by the rule change.
The court held that the administrative change violated the ex post facto clause because it increased the punishment on prisoners who had already been convicted of the crime. The court relied on Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960 (1981) and Waldrup v. Dugger, 562 So.2d 687 (FL S.Ct. 1990) in reaching its decision. "The rule amendment in the instant case, as did the statute in Waldrup, retrospectively enhances the measure of punishment by altering the available gaintime."
That the change in gaintime was done administratively by the DOC and not by the legislature was immaterial and did not resolve the ex post facto violation. "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 gaintime 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." See: Gwong v. Singletary, 683 So. 2d 109 (FL S.Ct. 1996).
Richard Gwong, a Florida prisoner serving a 22 year sentence for second degree murder, filed a writ of mandamus asking the Florida supreme court to order the DOC to make incentive gain time available to those prisoners who were eligible to receive it at the time of their convictions whom the rule change affected. More than 20,000 Florida prisoners were affected by the rule change.
The court held that the administrative change violated the ex post facto clause because it increased the punishment on prisoners who had already been convicted of the crime. The court relied on Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960 (1981) and Waldrup v. Dugger, 562 So.2d 687 (FL S.Ct. 1990) in reaching its decision. "The rule amendment in the instant case, as did the statute in Waldrup, retrospectively enhances the measure of punishment by altering the available gaintime."
That the change in gaintime was done administratively by the DOC and not by the legislature was immaterial and did not resolve the ex post facto violation. "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 gaintime 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." See: Gwong v. Singletary, 683 So. 2d 109 (FL S.Ct. 1996).
As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.
Already a subscriber? Login
Related legal case
Gwong v. Singletary
| Year | 1996 |
|---|---|
| Cite | 683 So. 2d 109 (FL S.Ct 1996) |
| Level | State Supreme Court |
683 SO. 2D 109
RICHARD BING GWONG, Petitioner, vs. HARRY K. SINGLETARY, JR., etc., Respondent.
No. 87,824
SUPREME COURT OF FLORIDA
683 So. 2d 109; 1996 Fla. ; 21 Fla. L. Weekly S 444
November 22, 1996, Decided
SUBSEQUENT HISTORY: [**1]
Reported at: 683 So. 2d 109 at 114.
PRIOR HISTORY: Original Proceeding - Mandamus.
Original Opinion of October 10, 1996, Reported at: 1996 Fla. LEXIS 1719.
DISPOSITION: Rehearing Denied.
COUNSEL: 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.
JUDGES: OVERTON, J., KOGAN, C.J., and SHAW, GRIMES and WELLS, JJ., concur. HARDING and ANSTEAD, JJ., concur in result.
OPINIONBY: OVERTON
OPINION: [*114]
ON REHEARING
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 statutes were a matter of legislative or executive grace and that [**2] 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 California Department of Corrections v. Morales, 514 U.S. 499, 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, [**3] 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, 134 L. Ed. 2d 775, 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, [*115] 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 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 [**4] 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.
RICHARD BING GWONG, Petitioner, vs. HARRY K. SINGLETARY, JR., etc., Respondent.
No. 87,824
SUPREME COURT OF FLORIDA
683 So. 2d 109; 1996 Fla. ; 21 Fla. L. Weekly S 444
November 22, 1996, Decided
SUBSEQUENT HISTORY: [**1]
Reported at: 683 So. 2d 109 at 114.
PRIOR HISTORY: Original Proceeding - Mandamus.
Original Opinion of October 10, 1996, Reported at: 1996 Fla. LEXIS 1719.
DISPOSITION: Rehearing Denied.
COUNSEL: 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.
JUDGES: OVERTON, J., KOGAN, C.J., and SHAW, GRIMES and WELLS, JJ., concur. HARDING and ANSTEAD, JJ., concur in result.
OPINIONBY: OVERTON
OPINION: [*114]
ON REHEARING
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 statutes were a matter of legislative or executive grace and that [**2] 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 California Department of Corrections v. Morales, 514 U.S. 499, 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, [**3] 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, 134 L. Ed. 2d 775, 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, [*115] 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 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 [**4] 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.