James v. Department of Corrections, AJ-10
| Decision Date | 22 September 1982 |
| Docket Number | No. AJ-10,AJ-10 |
| Citation | 424 So.2d 826 |
| Parties | Francis JAMES, Appellant, v. DEPARTMENT OF CORRECTIONS, Appellee. |
| Court | Florida District Court of Appeals |
Francis James, pro se.
Jim Smith, Atty. Gen., and Shirley A. Walker, Asst. Atty. Gen., Tallahassee, for appellee.
Appellant appeals the denial of his grievance appeal by the Department of Corrections.
On June 4, 1979, appellant was convicted of the crime of kidnapping with a firearm and sentenced pursuant to the mandatory gun law as set forth in section 775.087, Fla.Stat. (1979). At that time, the mandatory gun law provided that any person convicted under the statute shall serve a mandatory minimum term of imprisonment of three calendar years and that such person shall not be "eligible for parole or statutory gain-time under s. 944.27 or s. 944.29, prior to serving such minimum sentence." Section 775.087(2)(b), Fla.Stat. (1979). Prior to 1976, when the mandatory gun law was amended into its present form, the statute merely provided for a minimum sentence of three years of imprisonment and did not include a prohibition against the earning of any gain-time. In 1976, when the statutory gain-time provisions of sections 944.27 and 944.29 were added to the mandatory gun law, work gain-time, which was separately covered under section 944.271, Fla.Stat., was not included as part of the amendment to the mandatory gun law. Thereafter, in 1978, the Legislature repealed sections 944.27 and 944.29 and simultaneously enacted a new gain-time statute but did not amend the mandatory gun law to reflect the repeal of the former gain-time statutes and the enactment of the new gain-time statute set forth in section 944.275. The mandatory gun law continued to read that any person convicted under section 775.087 shall not be "eligible for parole or statutory gain-time under s. 944.27 or s. 944.29, prior to serving such minimum sentence." Section 775.087(2)(b), Fla.Stat. (1979). Appellant filed a grievance appeal with the Department of Corrections (DOC) alleging that section 775.087 did not render him ineligible to earn work gain-time prior to the completion of the mandatory minimum three year sentence. The DOC denied appellant's grievance appeal, and this appeal followed. We reverse.
Appellant contends that the Legislature's failure to amend the mandatory gun law statute to reflect the enactment of the new gain-time statute effectively removed the statutory gain-time ban from the mandatory gun law. In the alternative, appellant argues that even if the statutory gain-time provisions of sections 944.27 and 944.29 continued in effect as part of the mandatory gun law statute after their repeal, those provisions cannot include work gain-time as set forth in section 944.275 because it was never enacted into the mandatory gun law. We agree with appellant's second argument and find that there is no statutory or administrative authority for prohibiting a prisoner from earning work gain-time while serving a minimum mandatory sentence under the mandatory gun law.
As a matter of statutory construction, it is clear that work gain-time was never included within the statutory gain-time ban set forth in the mandatory gun law. Expressio unius est exclusio alterius is a general principle of statutory construction which states that the mention of one thing implies the exclusion of another. Thus, where a statute enumerates the things on which it is to operate, it is ordinarily construed as excluding from its operation all those not expressly mentioned. 30 Fla.Jur. s. 90. In this case, s. 775.087(2)(b), Fla.Stat. (1979), specifically provides that a defendant sentenced under the mandatory gun law shall not be eligible for "statutory gain-time under s.s. 944.27 or 944.29 prior to serving ...." (emphasis added) the mandatory sentence. Work gain-time, which was formerly covered under section 944.271, Fla.Stat. (1976 Supp.) and which is presently covered under section 944.275, Fla.Stat. (1981), was never expressly included within the statutory gain-time ban set forth in the mandatory gun law. Construing the mandatory gun law in accordance with the above rule of statutory construction, we conclude that since the statute enumerates the specific statutory gain-time provisions which are to be included within the statute, and work gain-time is not specifically mentioned, work gain-time is specifically excluded from the statutory gain-time ban set forth in the mandatory gun law. On this basis, we find that the DOC is without statutory authority to prohibit prisoners from earning work gain-time while serving a mandatory minimum three year sentence under the mandatory gun law.
The order of the DOC is REVERSED.
ON PETITION FOR REHEARING OR CLARIFICATION
By petition for rehearing and motion for clarification, the Department of Corrections (DOC) urges this court to recede from its earlier decision in this matter on the ground that we misapplied a general principle of statutory construction. In addition, the DOC seeks clarification on the question of whether an award of work gain-time can result in the release of a prisoner sentenced under the mandatory gun law prior to the completion of the minimum mandatory sentence of three calendar years.
In holding that the mandatory gun law did not include a prohibition against the earning of work gain-time prior to the completion of the minimum mandatory sentence, this court applied the general principle of statutory construction expressio unius est exclusio alterius to construe the mandatory gun law. We concluded that since the statute enumerates the specific statutory gain-time provisions which are included within the statute, and that since work gain-time is not specifically mentioned, work gain-time was specifically excluded from the statutory gain-time ban. In reaching that conclusion we noted that:
In 1976, when the statutory gain-time ban provisions of sections 944.27 and 944.29 were added...
To continue reading
Request your trial
-
Seaboard System R.R., Inc. v. Clemente for and on Behalf of Metropolitan Dade County
...the exclusion of another. Ideal Farms Drainage District v. Certain Lands, 154 Fla. 554, 19 So.2d 234 (1944); James v. Department of Corrections, 424 So.2d 826 (Fla.1st DCA 1982); Azar v. Graham, 194 So.2d 684 (Fla.3d DCA), aff'd, 204 So.2d 193 (Fla.1967). "[W]here a statute enumerates the t......
-
In re C.N.
...which it does not mention." Mingo v. ARA Health Servs., Inc., 638 So.2d 85, 86 (Fla. 2d DCA 1994) (citing James v. Dep't of Corrections, 424 So.2d 826 (Fla. 1st DCA 1982)). It follows that a circuit court may not expand indefinitely the list of crimes for which the termination of parental r......
-
Roberts v. State, 8 Div. 386
...rehabilitate them." Masteller, 251 Iowa at 240-241, 100 N.W.2d at 114. Our conclusion is also buttressed by James v. Department of Corrections, 424 So.2d 826 (Fla.Dist.Ct.App.1982). Florida's mandatory gun law provided that any person convicted under the statute shall serve a mandatory mini......
-
Vicaria v. Department of Health, 97-1364
...did not intend for this requirement to apply to hearings involving no disputed issues of material fact. James v. Department of Corrections, 424 So.2d 826, 827 (Fla. 1st DCA 1982)("Expressio unius est exclusio alterius is a general principle of statutory construction which states that the me......