Leftwich v. Fla. Dep't of Corr.

• Decision Date: 18 September 2014
• Docket Number: No. SC12–2669.,SC12–2669.
• Citation: 148 So.3d 79
• Parties: Robert B. LEFTWICH, Petitioner, v. FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.
• Court: Florida Supreme Court

148 So.3d 79

Robert B. LEFTWICH, Petitioner

v.FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.

No. SC12–2669.

Supreme Court of Florida.

Sept. 18, 2014.

Lindsay Morgen Saxe and Steven Douglas Knox of Quarles & Brady LLP, Tampa, FL, for Petitioner.

Jennifer Alani Parker, General Counsel, and Barbara Debelius–Enemark, Assistant General Counsel, Florida Department of Corrections, Tallahassee, FL, for Respondent.

Opinion

LEWIS, J.

Petitioner Robert Leftwich seeks review of the decision of the First District Court of Appeal in Leftwich v. Florida Department of Corrections, 101 So.3d 404 (Fla. 1st DCA 2012), on the basis that the First District certified that its decision is in conflict with the decision of the Second District Court of Appeal in Downs v. Crosby, 874 So.2d 648 (Fla. 2d DCA 2004). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

FACTS

In 1988, the Florida Legislature enacted the provisional credit statute to reduce overcrowding in the state prison system. See § 944.277(1)(g), Fla. Stat. (Supp.1988); see also Gomez v. Singletary, 733 So.2d 499, 500 (Fla.1998). Under the statute, qualified inmates could receive provisional credits applied to their sentence any time the prison population reached a certain threshold. § 944.277(1)(g), Fla. Stat. (Supp.1988). However, the statute delineated criteria which rendered certain inmates ineligible to receive provisional credits. Id. One factor that would render an inmate ineligible for provisional credits was if the inmate “is sentenced, or has previously been sentenced, under s. 775.084 [the habitual offender statute], or has been sentenced at any time in another jurisdiction as a habitual offender.” Id.

On February 10, 1989, Robert Leftwich committed a robbery and an aggravated battery with a weapon. He was sentenced on August 7, 1989, to two years' incarceration for the robbery conviction and ten years' incarceration for the aggravated battery conviction, with the sentences to run consecutively. Neither of these sentences was imposed under the habitual offender statute. However, on August 26, 1989, while incarcerated, Leftwich was found to be in possession of cannabis, and he was later convicted of inmate possession of contraband. Leftwich was sentenced under the habitual offender statute on September 4, 1990, to thirty years' incarceration with a ten-year mandatory minimum. At that time, Leftwich had accumulated 410 days of provisional credits to be applied to his sentences for the robbery and aggravated battery convictions. The Florida Department of Corrections (DOC) determined that due to the habitual offender sentence, Leftwich was not eligible to receive further awards of provisional credits on the robbery or aggravated battery convictions. As a result, the provisional release date for Leftwich reflects only the 410 days of provisional credits that he acquired prior to his sentence as a habitual offender, and no provisional credits have been awarded since the habitual offender designation.

On February 22, 2011, Leftwich submitted a request to the DOC for an explanation of why he has received only 410 days of provisional credits. Leftwich was of the opinion that he was eligible for 1,080 days of provisional credits for the robbery and aggravated burglary sentences. The DOC responded that an inmate who has been sentenced as a habitual offender is no longer eligible to receive provisional credits on non-habitual offender sentences. After unsuccessfully seeking administrative relief, Leftwich filed a petition for writ of mandamus in the circuit court, which was denied, and then filed a petition for writ of certiorari in the First District. The First District held that after he was determined to be a habitual offender, Leftwich was not eligible to receive provisional credits on any sentence, even those imposed prior to the habitual offender sentence. Leftwich, 101 So.3d at 404–05. However, the district court certified conflict with Downs, in which the Second District held that under the version of the provisional credit statute in effect from 1988 through 1992, inmates who were eligible to receive provisional credits on a prior sentence, but who were later sentenced as a habitual offender, could continue to receive provisional credits on their earlier sentence. 874 So.2d at 650, 652. This review follows.

Analysis

Provisional Credit Statute

The provisional credit statute, as enacted in 1988, stated:

(1) Whenever the inmate population of the correctional system reaches 97.5 percent of lawful capacity as defined in s. 944.096, the Secretary of Corrections shall certify to the Governor that such condition exists. When the Governor acknowledges such condition in writing, the secretary may grant up to 60 days of provisional credits equally to each inmate who is earning incentive gain-time, except to an inmate who:

(a) Is serving a sentence which includes a mandatory minimum provision for a capital offense or drug trafficking offense and has not served the number of days equal to the mandatory minimum term less any jail-time credit awarded by the court;

(b) Is serving the mandatory minimum portion of a sentence enhanced under s. 775.087(2);

(c) Is convicted, or has been previously convicted, of committing or attempting to commit sexual battery, incest, or a lewd or indecent assault or act;

(d) 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;

(e) Is convicted, or has been previously convicted, of committing or attempting to commit kidnapping, burglary, or murder, and the offense was committed with the intent to commit sexual battery;

(f) 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; or

(g) Is sentenced, or has previously been sentenced, under s. 775.084, or has been sentenced at any time in another jurisdiction as a habitual offender.

(2) The secretary's authority to grant provisional credits in increments not exceeding 60 days will continue until the inmate population of the correctional system reaches 97 percent of lawful capacity, at which time the authority granted to the secretary will cease, and the secretary shall notify the Governor in writing of the cessation of such authority.

(3) At such time as provisional credits are granted, the Department of Corrections shall establish a provisional release date for each eligible inmate incarcerated, which will be the tentative release date less any provisional credits granted.

(4) Any eligible inmate who is incarcerated on the effective date of an award of provisional credits shall receive such credits. Any inmate who is under any type of release supervision program of the department is not eligible for an award of provisional credits.

§ 944.277, Fla. Stat. (Supp.1988) (emphasis added).

The DOC interpreted the statute to render an inmate ineligible to receive further provisional credits on any sentence once that inmate received a habitual offender sentence. See generally Dugger v. Anderson, 593 So.2d 1134, 1134 (Fla. 1st DCA 1992). In 1992, the First District held that the language “is ... or has previously been sentenced” with respect to a sentence imposed pursuant to the Florida habitual offender statute contrasted with the language “at any time” used in reference to a habitual offender sentence imposed by another jurisdiction. Id. Based on this distinction, the district court concluded that the disqualifying language of the provisional credit statute did not extend to non-habitual offender sentences which were imposed prior to a Florida habitual offender sentence. Id. at 1135. Thus, the First District held that a sentence imposed pursuant to the Florida habitual offender statute did not render an inmate ineligible to receive provisional credits for a sentence that was imposed prior to being determined to be a habitual offender.

Shortly after the decision in Anderson, the Legislature amended the provisional credit statute to exclude from eligibility any inmate who “[i]s sentenced, or has previously been sentenced, or has been sentenced at any time under s. 775.084 [the habitual offender statute], or has been sentenced at any time in another jurisdiction as a habitual offender....” § 944.277(1)(g), Fla. Stat. (Supp.1992) (emphasis added). The amendment was enacted as a result of the decision in Anderson. See, e.g., Mamone v. Dean, 619 So.2d 36, 36 (Fla. 5th DCA 1993) (“After Anderson (and, indeed, because of it), the Florida Legislature remedied the language of section 944.277(1)(g), Florida Statutes, to show its clear intent that an inmate is precluded from receiving provisional credits once sentenced as a habitual offender.”); see also McBride v. Moore, 780 So.2d 221, 222 (Fla. 1st DCA 2001) (“As the court explained in Mamone ..., the legislature actually amended section 944.277(1)(g) as a reaction to the Anderson decision....”).

Ex Post Facto Principles

Leftwich contends that Anderson entitles him to receive provisional credits on the sentences imposed prior to the date he received the habitual offender status, and the denial of provisional credits on these sentences based on the 1992 amendment violates the ex post facto clause. The ex post facto clause is violated by application of a penal law if the application: (1) is retrospective; and (2) disadvantages the offender affected by it. See Waldrup v. Dugger, 562 So.2d 687, 691 (Fla.1990). The ex post facto clause applies to gain time statutes, including those for incentive gain time, basic gain time, and overcrowding gain time. See Gomez, 733 So.2d at 504.

If retroactive application of a statutory amendment results...