Dugger v. Rodrick
| Decision Date | 11 July 1991 |
| Docket Number | No. 76801,76801 |
| Parties | Richard L. DUGGER, etc., Petitioner, v. Jeffrey RODRICK, Respondent. 584 So.2d 2, 16 Fla. L. Week. S482 |
| Court | Florida Supreme Court |
Susan A. Maher, Asst. Gen. Counsel, Dept. of Corrections, Tallahassee, for petitioner.
Richard A. Belz, Executive Director, Florida Institutional Legal Services, Inc., Gainesville, for respondent.
We review Rodrick v. State, 567 So.2d 906 (Fla. 2d DCA 1990), because of its conflict with Miller v. Dugger, 565 So.2d 846 (Fla. 1st DCA 1990). The Court's jurisdiction is based on article V, section 3(b)(3) of the Florida Constitution. 1
Respondent Jeffrey Rodrick, an inmate in the custody of the Florida Department of Corrections, filed a petition for writ of mandamus challenging the department's denial of provisional credits under section 944.277, Florida Statutes (Supp.1988). The circuit court denied the petition. Believing that the application of the statute to Rodrick constituted an ex post facto application of the law, the Second District Court of Appeal reversed with instructions to grant the writ.
Section 944.277, Florida Statutes (Supp.1988), provides that when the inmate population of the correctional system reaches a certain percentage of lawful capacity the department may grant provisional credits to all prisoners except those convicted of certain crimes or serving certain types of sentences. Because Rodrick had been convicted of burglary, kidnapping with intent to commit sexual battery, and aggravated battery, he was ineligible for provisional credits under section 944.277(1)(e). However, under prior inmate population control statutes, section 944.598, Florida Statutes (Supp.1986), and section 944.276, Florida Statutes (1987), Rodrick's crimes would not have precluded him from eligibility for what the statute now calls provisional credits. 2 Because his crimes were committed on April 17, 1987, which predated the enactment of section 944.277, the court below concluded that Rodrick could not be denied provisional credits.
The First District Court of Appeal reached a contrary conclusion in Miller v. Dugger. In rejecting an inmate's claim for provisional credits under section 944.277, the First District Court of Appeal said:
Section 944.277, formerly section 944.276, awards gain time purely for the administrative convenience of the Department of Corrections. Since the statutes are procedural in nature, they do not create substantive rights, as contrasted to the substantive statute considered in Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981). See Blankenship v. Dugger, 521 So.2d 1097 (Fla.1988). Because section 944.277 does not operate to deprive appellant of a substantive right, it is not ex post facto as applied to him.
Miller, 565 So.2d at 848-49. Accord Henderson v. State, 543 So.2d 344 (Fla. 1st DCA), review denied, 551 So.2d 461 (Fla.1989); Mayo v. Dugger, 535 So.2d 300 (Fla. 1st DCA 1988).
This case is controlled by Blankenship v. Dugger, 521 So.2d 1097 (Fla.1988), in which this Court passed on the question of whether an inmate who committed crimes in 1984 was properly denied administrative gain time under section 944.276 because of his conviction for sexual battery. Blankenship argued that under section 944.598, which was in effect at the time his crimes were committed, he would not have been precluded from eligibility for administrative gain time. He relied upon Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981), which had held that a statute reducing the amount of basic gain time available for good conduct was an ex post facto law as applied to a prisoner whose crime was committed before the statute's enactment. Rejecting this contention, we said:
Petitioner's argument that his case is controlled by Weaver is misplaced. In Weaver the Supreme Court of the United States declared that a Florida law that reduced gain time was ex post facto as applied to prisoners whose crimes were committed before the law was changed. Initially, it should be observed that Weaver is not on point; it dealt with "good time," i.e., time off a prisoner's sentence awarded for exhibiting good behavior. The statutes at issue here award gain time purely for the administrative convenience of the Department of Corrections. Moreover, since these statutes are procedural in nature, as contrasted to the substantive statute considered in Weaver v. Graham, they do not create substantive rights. A retrospective statute may work to a person's disadvantage so long as it does not deprive the person of any substantial right or protection. See Dobbert [v. State, ] 432 U.S. 293-94, 97 S.Ct. [2290] 2298-99 [53 L.Ed.2d 344 (1977) ]. Under Weaver, prisoners entering the correctional system do have a statutory right under section 944.275, Florida Statutes (1985), to "good time" gain time, and it will automatically accrue to them if their behavior meets certain standards. However, when petitioner's crimes were committed, there was no guarantee that the prison population would ever reach ninety-eight percent of capacity while he was incarcerated. Petitioner had no control over the factors that would lead to the Department of Corrections granting administrative gain time.
Blankenship, 521 So.2d at 1099.
The principle of Blankenship has not been affected by this Court's recent decision in Waldrup v. Dugger, 562 So.2d 687 (Fla.1990), in which we held that a 1983 statutory reduction in incentive gain time could not be applied to inmates convicted of offenses occurring before the effective date of the amendment. In reaching this conclusion, we reasoned that incentive gain time was similar to the basic good-conduct gain time which Weaver v. Graham had held was subject to ex post facto requirements. We did not address the award of provisional credits, which is merely an administrative tool available to alleviate prison overcrowding.
We reject Rodrick's attempt to liken the award of provisional credits to the basic gain time available for good conduct addressed in Weaver v. Graham and the incentive gain time addressed in Waldrup v. Dugger. Both basic and incentive gain time relate to the sentence imposed, and a release date reduced by these awards can be reasonably predicted, based upon length of the term meted out. Basic gain time is applied as a lump-sum award to reduce the overall length of sentence the day the prisoner enters the prison gates. Though not...
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