Fla. Dep't of Corr. v. Gould, 1D19-1149

CourtCourt of Appeal of Florida (US)
Writing for the CourtTanenbaum, J.
PartiesFlorida Department of Corrections, Appellant, v. McMillan C. Gould, Appellee.
Decision Date10 June 2022
Docket Number1D19-1149

Florida Department of Corrections, Appellant,

McMillan C. Gould, Appellee.

No. 1D19-1149

Florida Court of Appeals, First District

June 10, 2022

Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

On appeal from the Circuit Court for Leon County. Karen A. Gievers, Judge.

Lance E. Neff, General Counsel, Mark S. Urban, Deputy General Counsel, Florida Department of Corrections, Tallahassee; and Ashley Moody, Attorney General, and Sheron Wells and Kristin J. Lonergan, Assistant Attorneys General, Tallahassee, for Appellant.

Terrence E. Kehoe, Orlando, for Appellee.


Tanenbaum, J.

The Department of Corrections asks us to review a trial court order granting a writ of mandamus that would require the department to consider McMillan Gould for incentive gain-time. Gould is in prison on a conviction for attempted sexual battery. According to the department, the trial court erred in granting the writ because the operative gain-time statute excludes from eligibility those convicted of violating the statute defining sexual battery as a crime. The department contends this exclusion applies to those convicted of attempting a violation of that statute. Even though the department has sought review through certiorari, the


trial court did not issue the writ in its review capacity, so we treat this case as a direct appeal. Still, we disagree with the department's statutory interpretation and affirm the order granting mandamus. In the course of doing so, we recede from this court's previous pronouncement of a plainly incorrect legal principle regarding Florida's general criminal attempt statute, which first appeared in Zopf v. Singletary, 686 So.2d 680 (Fla. 1st DCA 1996), and was later adopted in Wilcox v. State, 783 So.2d 1150 (Fla. 1st DCA 2001).[1]



Gould pleaded no contest to attempted sexual battery on a child under the age of twelve. The conviction was not based on an attempt that resulted in injury to the child's sex organs.[2] The conviction instead was for "criminal attempt," which is defined in section 777.04, Florida Statutes (2014). Gould's judgment of conviction references both this statute and the sexual battery statute, section 794.011(2)(a), Florida Statutes (2014). He committed the crime sometime after October 1, 2014. The trial court sentenced him to twenty-five years in prison.[3]

Most prisoners are entitled to be considered for a grant of incentive gain-time by the department. See § 944.275(4)(b)3., Fla. Stat. (2014) (allowing the department to "grant up to 10 days per month of incentive gain-time" on sentences imposed for offenses committed after October 1, 1995). Incentive gain-time is the sum of "deductions from sentences . . . 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." § 944.275(1), Fla. Stat.; see also id. (4)(b) (allowing for a monthly grant of incentive gain-time to an inmate who "works diligently, participates in training, uses time constructively, or otherwise engages in positive activities").

The department advised Gould he is not eligible for incentive gain-time, citing section 944.275(4)(e), Florida Statutes. Paragraph (4)(e) provides that for sentences imposed on offenses committed on or after October 1, 2014, the department "may not grant incentive gain-time if the offense is a violation of . . . s. 794.011," which defines "sexual battery" as a felony. The department considers Gould to be serving a sentence imposed for an offense that fits within this provision. Based on that reading,


the department will continue to exclude Gould, for the duration of this incarceration, from any consideration at all for a monthly gain-time credit against his sentence term.

Gould sued the department in circuit court for a writ of mandamus. He sought to compel the department to consider him as eligible for incentive gain-time, both retrospectively and for the remainder of his sentence. Primarily in reliance on this court's decision in Zopf, Gould averred that the department was "wrong" to declare him ineligible because he was convicted of the offense of criminal attempt to commit sexual battery, not the offense of sexual battery itself.

In Zopf the prisoner, who was convicted of attempted sexual battery, appealed the denial of his request for mandamus compelling the department to consider him for basic gain-time. A provision had been added to the sexual battery statute itself (section 794.011(7), Florida Statutes) that rendered a prisoner "convicted of committing a sexual battery . . . not eligible for basic gain-time."[4] Even in that case, the department took the position that the prisoner was ineligible under that provision because he had been convicted of an offense under the sexual battery statute. In denying relief, the trial court reasoned that "the obvious legislative intent of section 794.011(7) [was to prevent] the early release of sexual offenders under that statute." Zopf, 686 So.2d at 681. Even though this court characterized "attempted sexual battery [as] a crime under section 794.011(2), Florida Statutes, as modified by the 'attempt' statute, section 777.04, Florida Statutes," it reversed, stating that "[i]f the legislature had intended for the provisions of [subsection seven] to apply also to those persons, like the appellant, who were convicted of attempted sexual battery, then it would have been a simple matter to state it plainly in the statute." Id. The court held that the department "may not rely on subsection (7) to deny Zopf's eligibility automatically." Id. at 682.


In the proceeding below, the department responded to the trial court's show cause order[5] and attempted to distinguish Zopf. The department pointed out that the statutory provision it relied on in automatically denying Gould eligibility, section 944.275(4)(e), is not the same as the provision under consideration in Zopf. It argued that subsection (4)(e) "does not explicitly name any offense; rather, it refers to particular statutory sections and subsections." As the department put it, the "scope [of the subsection] is therefore broader, because anyone who is convicted of an attempt to commit a crime is never convicted solely under the attempt statute (Section 777.04(1)); rather, he is convicted under a particular criminal statute as modified by the attempt statute." This language came from our en banc decision in Wilcox. There, albeit in a different statutory context, this court held that the attempt statute, section 777.04(1), effectively modifies the sexual battery statute, section 794.011(2), such that a conviction for the offense of criminal attempt to commit sexual battery "is an offense under chapter 794, Florida Statutes." Id. at 1150.

The trial court agreed with Gould and rejected the department's reliance on Wilcox, reading this court's reference to Zopf as indicative of the latter decision "still being good law." The court granted Gould the relief he sought: a writ that would preclude the department from automatically denying him gain-time eligibility and instead would compel it to exercise its discretion. The writ would require the department to consider Gould "as eligible for gain time and to award him any and all gain time which he should have earned for time served to date."


The department sought "second-tier" appellate review from this court in the form of certiorari. See Sheley v. Fla. Parole Comm'n, 720 So.2d 216, 217-18 (Fla. 1998) (holding that a district court reviews a trial court's denial of relief while operating in a "review capacity" via certiorari because there is no entitlement to "a second plenary appeal on the merits"); Fla. Parole Comm'n v. Taylor, 132 So.3d 780, 784 (Fla. 2014) (adhering to Sheley and


again concluding "that second-tier certiorari relief should be granted only where the circuit court departed from the essential requirements of law and that departure resulted in a miscarriage of justice"). We, however, treat the department's petition as a request for direct appellate review of the trial court's final order. Cf. Johnson v. Citizens State Bank, 537 So.2d 96, 97 (Fla. 1989) ("There is no question that an appellate court has jurisdiction to review a cause even though the form of appellate relief is mischaracterized."); see also Skinner v. Skinner, 561 So.2d 260, 262 (Fla. 1990) (concluding that even though a party mischaracterized an appeal as a petition for writ of certiorari, the court possessed jurisdiction to review as a notice of appeal); see Art. V, § 2(a), Fla. Const. (authorizing the supreme court to adopt a "requirement that no cause shall be dismissed because an improper remedy has been sought"); Fla. R. App. P. 9.040(c).

Before turning to review of the final order, then, we must explain why we are handling the case in this way. In doing so, we also hope to clear up some confusion that has developed regarding what sometimes are called "Sheley appeals." The confusion perhaps emanates from a subtle distinction between two ways a writ of mandamus may operate against an administrative agency vested with discretionary authority over a matter impacting an individual right.

Mandamus is an ancient writ rooted in English common law. It was used "to prevent disorder from a failure of justice" where there was no other remedy but "where in justice and good government there ought to be one." Towle v. State ex rel. Fisher, 3 Fla. 202, 209 (1850) (quoting Lord Mansfield). The writ became known in the United States

as a command issuing from a common law court of competent jurisdiction, in the name of the state or sovereign, directed to some corporation, officer, or inferior court, requiring the performance of a particular duty therein specified, which duty results

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