Gwong v. Singletary, 87824

• Decision Date: 10 October 1996
• Docket Number: No. 87824,87824
• Citation: 683 So.2d 109
• Parties: , 21 Fla. L. Weekly S430, 21 Fla. L. Weekly S444, 21 Fla. L. Weekly S503 Richard Bing GWONG, Petitioner, v. Harry K. SINGLETARY, Jr., etc., Respondent.
• Court: Florida Supreme Court

Page 109

683 So.2d 109

65 USLW 2314, 21 Fla. L. Weekly S430, 21 Fla. L. Weekly S444,

21 Fla. L. Weekly S503

Richard Bing GWONG, Petitioner, v. Harry K. SINGLETARY, Jr., etc., Respondent.

No. 87824.

Supreme Court of Florida.

Oct. 10, 1996.

Opinion Denying Rehearing

Nov. 22, 1996.

Baya Harrison, III, Monticello, for Petitioner.

Louis A. Vargas, General Counsel and Susan A. Maher, Deputy General Counsel, Department of Corrections, Tallahassee, for Respondent.

Robert A. Butterworth, Attorney General; and Jason Vail and Joslyn Wilson, Assistant Attorneys General, Tallahassee, for Amicus Curiae, the Office of the Attorney General.

OVERTON, Justice.

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 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. ¹ Specifically, section 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.

944.275(4)(b), Florida Statutes (1985), ² stated:

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:

...

* * *

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 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; or

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.

(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. ³ 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, 514 U.S. 499, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995). In applying this test to the instant case, we are presented with nearly the identical situation we evaluated in Waldrup v. 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, 101 S.Ct. at 965 (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, 101 S.Ct. at 966. 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, 110 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 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, 514 U.S. at ---- n. 3, 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 ---- - ----, 115 S.Ct. 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...