Duer v. Moore, No. 1D99-3407.

CourtCourt of Appeal of Florida (US)
Writing for the CourtBENTON, J.
Citation765 So.2d 743
Docket NumberNo. 1D99-3407.
Decision Date22 May 2000
PartiesMichael D. DUER, Petitioner, v. Michael W. MOORE, Secretary, Department of Corrections, Respondent.

765 So.2d 743

Michael D. DUER, Petitioner,
v.
Michael W. MOORE, Secretary, Department of Corrections, Respondent

No. 1D99-3407.

District Court of Appeal of Florida, First District.

May 22, 2000.


Petitioner pro se.

Robert A. Butterworth, Attorney General; Judy Bone, Assistant Attorney General, Tallahassee, for Respondent.

BENTON, J.

By petition for writ of certiorari, Michael Duer invokes our jurisdiction to review the circuit court's order denying the petition for writ of mandamus he filed there. Art. V, § 5(b), Fla. Const.; Fla. R.App. P. 9.030(c)(3). His petition for writ of mandamus sought an order directing the Department of Corrections (DOC) to recognize "a right to have his incentive gain-time applied consistent with the laws in effect at the time of offense." We grant the petition for writ of certiorari and quash the order denying the petition for writ of mandamus. On remand, the circuit court should issue a writ of mandamus unless "it appears that appellant would be entitled to immediate release from incarceration if properly credited with the time he is seeking, [in which event] the petition should be treated as a petition for writ of habeas corpus." Steele v. State, 733 So.2d 1117, 1118 (Fla. 4th DCA 1999).

Mr. Duer pleaded nolo contendere, insofar as pertinent here, to counts two and four of the information filed in Case No. CR96-3353 (Fla. 9th Cir. Mar. 14, 1996) alleging lewd acts on or with certain minors "on divers dates on or between the 1st day of January, 1995 and the 8th day of November, 1995." Convicted of these offenses on his plea, he received concurrent, seven-year sentences.

DOC originally awarded him incentive gain-time under section 944.275(4)(b), Florida

765 So.2d 744
Statutes (1993), at the rate of twenty days per month. Section 944.275(4)(b) was later amended, see Ch. 95-294, § 2, at 2717-18, Laws of Fla. (Stop Turning Out Prisoners Act), however, to halve the rate at which incentive gain-time can be awarded and to provide that, as to "sentences imposed for offenses committed on or after October 1, 1995, ... no prisoner is eligible to earn any type of gain-time in an amount that would cause a sentence to expire, end, or terminate, or that would result in a prisoner's release, prior to serving a minimum of 85 percent of the sentence imposed." § 944.275(4)(b)3., Fla. Stat. (1995)

After the amendment, in response to DOC's notice of its intention to apply the amended statute, Mr. Duer sought administrative redress, citing e.g., Waldrup v. Dugger, 562 So.2d 687, 692 (Fla.1990) ("Even the `grace' of the legislature, once given,...

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  • Bush v. Holmes, Case No. 1D02-3160 (FL 8/16/2004), Case No. 1D02-3160.
    • United States
    • United States State Supreme Court of Florida
    • August 16, 2004
    ...failure to adopt a proposed change to the Constitution as evidence of intent (relating to the 1968 Constitution). See Duer v. Moore, 765 So. 2d 743, 745 (Fla. 1st DCA 2000) ("Nor do we rely in any way on the reported failure, in a subsequent legislative session, of an effort to amend sectio......
  • Bush v. Holmes, No. 1D02-3160
    • United States
    • Court of Appeal of Florida (US)
    • November 12, 2004
    ...failure to adopt a proposed change to the Constitution as evidence of intent (relating to the 1968 Constitution). See Duer v. Moore, 765 So.2d 743, 745 (Fla. 1st DCA 2000) ("Nor do we rely in any way on the reported failure, in a subsequent legislative session, of an effort to amend section......
  • STATE, BD. OF TRUSTEES OF INTERNAL IMPROVEMENT TRUST FUND v. Day …, No. 1D00-1058.
    • United States
    • Court of Appeal of Florida (US)
    • September 13, 2001
    ...to amend [even a] proposed law in one chamber of the Legislature [despite the proposed law's enactment that session]."); Duer v. Moore, 765 So.2d 743, 745 (Fla. 1st DCA 2000) ("Nor do we rely in any way on the reported failure, in a subsequent legislative session, of an effort to amend [a s......
  • DLJ v. State, No. 1D99-3473.
    • United States
    • Court of Appeal of Florida (US)
    • May 22, 2000
    ...the disposition order and remand the cause with directions to use a separate order for each offense, and to impose a sanction which 765 So.2d 743 does not exceed 60 days as to the instant petit theft ALLEN and KAHN, JJ., CONCUR. -------- Notes: 1. The printed order includes handwritten inte......
  • Request a trial to view additional results
8 cases
  • Bush v. Holmes, Case No. 1D02-3160 (FL 8/16/2004), Case No. 1D02-3160.
    • United States
    • United States State Supreme Court of Florida
    • August 16, 2004
    ...failure to adopt a proposed change to the Constitution as evidence of intent (relating to the 1968 Constitution). See Duer v. Moore, 765 So. 2d 743, 745 (Fla. 1st DCA 2000) ("Nor do we rely in any way on the reported failure, in a subsequent legislative session, of an effort to amend sectio......
  • Bush v. Holmes, No. 1D02-3160
    • United States
    • Court of Appeal of Florida (US)
    • November 12, 2004
    ...failure to adopt a proposed change to the Constitution as evidence of intent (relating to the 1968 Constitution). See Duer v. Moore, 765 So.2d 743, 745 (Fla. 1st DCA 2000) ("Nor do we rely in any way on the reported failure, in a subsequent legislative session, of an effort to amend section......
  • STATE, BD. OF TRUSTEES OF INTERNAL IMPROVEMENT TRUST FUND v. Day …, No. 1D00-1058.
    • United States
    • Court of Appeal of Florida (US)
    • September 13, 2001
    ...to amend [even a] proposed law in one chamber of the Legislature [despite the proposed law's enactment that session]."); Duer v. Moore, 765 So.2d 743, 745 (Fla. 1st DCA 2000) ("Nor do we rely in any way on the reported failure, in a subsequent legislative session, of an effort to amend [a s......
  • DLJ v. State, No. 1D99-3473.
    • United States
    • Court of Appeal of Florida (US)
    • May 22, 2000
    ...the disposition order and remand the cause with directions to use a separate order for each offense, and to impose a sanction which 765 So.2d 743 does not exceed 60 days as to the instant petit theft ALLEN and KAHN, JJ., CONCUR. -------- Notes: 1. The printed order includes handwritten inte......
  • Request a trial to view additional results

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