Waldrup v. Dugger, No. 74012

CourtUnited States State Supreme Court of Florida
Writing for the CourtKOGAN; EHRLICH; McDONALD
Citation562 So.2d 687
Docket NumberNo. 74012
Decision Date21 June 1990
Parties15 Fla. L. Weekly S358 Donald WALDRUP, Petitioner, v. Richard DUGGER, etc., Respondents.

Page 687

562 So.2d 687
15 Fla. L. Weekly S358
Donald WALDRUP, Petitioner,
v.
Richard DUGGER, etc., Respondents.
No. 74012.
Supreme Court of Florida.
June 21, 1990.

Page 688

Michael E. Allen, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for petitioner.

Robert A. Butterworth, Atty. Gen., and Susan A. Maher, Asst. Atty. Gen., Tallahassee, for respondents.

KOGAN, Justice.

Donald Waldrup, an inmate serving a fifteen-year sentence in the Avon Park Correctional Institution for crimes he committed in 1980 and 1982, petitions this Court for writ of habeas corpus. He alleges that the 1983 amendments to Florida's gain-time statutes 1 are being applied retroactively to deprive him of an earlier release from prison, in violation of one of the ex post facto

Page 689

clauses of the Constitution. 2 U.S. Const. art. I, § 10. We treat this as a petition for writ of mandamus and accept jurisdiction. Art. V, § 3(b)(8), Fla. Const.

Prior to 1983, state law gave the Florida Department of Corrections ("DOC") wider discretion in granting "incentive" gain-time to prisoners. Then as now, incentive gain-time was meant to reward good behavior by reducing the inmates' overall sentences. However, unlike present-day law, the pre-1983 statutes let DOC give inmates who performed "satisfactory and acceptable" work a monthly gain-time award of up to the total number of days in the month. 3 Another award of one to six days a month could be given for work performance "over and above that which may normally be expected," among other reasons. 4

These pre-1983 awards were in addition to a "basic" gain-time award of three, six, or nine days per month, with the total number being based on the length of prior incarceration. To receive this basic gain-time award, the statute required only that the inmate perform "satisfactory and acceptable" work and be guilty of no infractions. 5 Even if these conditions were met, the basic gain-time award was subject to forfeiture for unacceptable conduct. Compare § 944.275(2)(d), Fla.Stat. (1981) with § 944.28, Fla.Stat. (1981).

Although DOC typically granted the basic gain-time awards to every inmate not guilty of any infraction, the statutory language reveals that DOC possessed considerable discretion in determining what constituted "satisfactory and acceptable" work. Such awards thus were not "automatic"--a fact underscored by a separate statement of legislative intent that directed that all forms of gain-time could "be awarded only if earned as provided herein." § 944.275(2)(a), Fla.Stat. (1981) (emphasis added). Accord Raske v. Martinez, 876 F.2d 1496, 1499 (11th Cir.1989) (concluding that basic gain-time essentially is discretionary in nature).

Thus, under this pre-1983 formula, an inmate who qualified for the best possible award could have received as many as thirty-seven days of incentive gain-time a month 6 and another nine days of basic

Page 690

gain-time. The total possible award, in other words, could be as great as forty-six days per month, or 545 days in a typical year. 7 An inmate sentenced to fifteen years in prison thus would be eligible for release after serving only six years, assuming the inmate had received the maximum possible number of basic and incentive gain-time days. 8

In 1983, the legislature substantially revised and simplified the gain-time statute. See ch. 83-131, § 8, Laws of Fla. Under the revision, the two earlier statutes governing incentive gain-time essentially were repealed. Id. They were replaced with a new statute that provided a maximum of twenty days of incentive gain-time per month for inmates who had engaged in "positive activities" such as training programs or diligent work. 9 The statutory language discloses that the total number of days granted by DOC was discretionary, provided the award never exceeded twenty. Thus, the 1983 reforms limited DOC's discretion by decreasing the largest possible incentive gain-time award from thirty-seven to twenty days a month.

Simultaneously, the basic gain-time statute was amended in 1983 to require a flat ten-day award every month "[a]s a means of encouraging satisfactory behavior" 10--a one-day increase over the largest possible award available before 1983. The statute uses mandatory language, suggesting that DOC must grant the ten-day basic gain-time award each month. However, other related statutory provisions state that DOC has discretion to summarily declare any gain-time award forfeited based on certain broadly defined acts or omissions, disciplinary infractions or unlawful conduct. 11 Compare § 944.275(5), Fla.Stat. (1987) with § 944.28, Fla.Stat. (1987). In other words, DOC still retains substantial discretion to withhold an award, whether or not DOC actually exercises that discretion. Accord Raske, 876 F.2d at 1499.

Under this 1983 formulation, an inmate can receive a maximum of thirty days total gain-time for each month in prison, or 360 days in a year. 12 As a result, an inmate serving a fifteen-year sentence could be released in about seven and a half years if DOC awarded the maximum amount of basic and incentive gain-time available under the present statute. 13

Page 691

Based on these computations, it thus is evident that the 1983 amendments could have the effect of increasing Waldrup's actual incarceration by up to one and a half years.

Waldrup argues that this increase, when applied to him, is an unconstitutional ex post facto law. The state, on the other hand, contends that DOC always has had discretion to deny incentive gain-time and that Waldrup thus is not entitled to habeas relief based on this record. We agree with both of these arguments, finding them not incompatible.

It is well established that a penal statute violates the ex post facto clause if, after a crime has been committed, it increases the penalty attached to that crime. The United States Supreme Court clearly established this principle in the early case of Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648 (1798), 14 and has adhered to this basic definition ever since. E.g., Weaver v. Graham, 450 U.S. 24, 28, 101 S.Ct. 960, 963, 67 L.Ed.2d 17 (1981) (citing Calder, 3 U.S. (3 Dall.) at 390).

The policy underlying this prohibition is "to assure that legislative Acts give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed." Id., 450 U.S. at 28-29, 101 S.Ct. at 963-64 (citing Dobbert v. Florida, 432 U.S. 282, 298, 97 S.Ct. 2290, 2300, 53 L.Ed.2d 344 (1977); Kring v. Missouri, 107 U.S. 221, 229, 2 S.Ct. 443, 449, 27 L.Ed. 506 (1883); Calder, 3 U.S. (3 Dall.) at 396 (Patterson, J.); The Federalist No. 44 (J. Madison) & No. 84 (A. Hamilton)). Equally, the ex post facto clauses of the Constitution "restrict[ ] governmental power by restraining arbitrary and potentially vindictive legislation." Id., 450 U.S. at 29, 101 S.Ct. at 964 (citing Malloy v. South Carolina, 237 U.S. 180, 183, 35 S.Ct. 507, 508, 59 L.Ed. 905 (1915); Kring, 107 U.S. at 229, 2 S.Ct. at 449; Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 138, 3 L.Ed. 162 (1810); Calder, 3 U.S. (3 Dall.) at 396 (Patterson, J.); The Federalist No. 44 (J. Madison) & No. 84 (A. Hamilton)).

A retroactive law, however, is not ex post facto unless two critical elements are present: The law must apply to events occurring before its enactment, and it must disadvantage the offender. Id. (citing Lindsey v. Washington, 301 U.S. 397, 401, 57 S.Ct. 797, 799, 81 L.Ed. 1182 (1937); Calder, 3 U.S. (3 Dall.) at 390).

We have no doubt that both the incentive and basic gain-time statutes challenged by Waldrup contain the first of these elements. For instance, the statute provides that "[o]n the effective date of the act, all incentive and meritorious gain-time shall be granted according to the provisions of this act." Ch. 83-131, § 8, Laws of Fla. (codified at § 944.275(6)(b), Fla.Stat. (1987)) (emphasis added). Similarly, the new basic gain-time formula "shall be computed on and applied to all sentences imposed for offenses committed on or after July 1, 1978." Id. (codified at § 944.275(6)(a), Fla.Stat. (1987)). Both of these gain-time revisions, then, apply to a large class of inmates like Waldrup whose offenses occurred before June 1983, when the act took effect. See ch. 83-131, Laws of Fla.

However, it is obvious that the revision of the basic gain-time statute, viewed in isolation from the rest of the statute, does not contain the second element of an ex post facto law, because it does not disadvantage Waldrup. The 1983 revisions actually increased the amount of basic gain-time available for all inmates. This works to Waldrup's advantage. As a result, no

Page 692

violation of the ex post facto clause occurs if Waldrup's basic gain-time is computed under the present statute.

The incentive gain-time statute, on the other hand, was revised to decrease the largest possible award from thirty-seven to twenty days. The state argues that this does not render the law ex post facto, since the availability of incentive gain-time is nothing but a "mere expectancy" dependent entirely on the discretion of DOC. Be that as it may, we are forced to conclude that the 1983 amendment renders the statute ex post facto because it actually disadvantages Waldrup within the meaning of the relevant case law.

Indeed, the argument advanced by the state sounds very much like the discredited analysis employed by this Court in Harris v. Wainwright, 376 So.2d 855 (Fla.1979). In Harris, we had denied relief after an inmate was subjected to a retroactive gain-time statute that had reduced the maximum number of gain-time days that could be awarded to him. We held that

gain time allowance is an act of grace rather than a vested right and may be withdrawn, modified, or denied.

Harris, 376 So.2d at 856.

The United States Supreme Court in Weaver directly overruled Harris, finding that

[c]ontrary to the reasoning of the Supreme Court of...

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  • Granite State Outdoor Adver. v. City of Clearwater, No. 8:01CV1663T30MSS.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • July 23, 2002
    ...the one without the other, and (4) an act complete in itself remains after the invalid provisions are stricken." Waldrup v. Dugger, 562 So.2d 687, 693 (Fla.1990) (challenging application of revised gain time statute for habeas corpus challenge). The Florida Supreme Court simply stated: "[t]......
  • State v. JP, No. SC02-2288
    • United States
    • United States State Supreme Court of Florida
    • November 18, 2004
    ...ignores an important adjective in the first part of this test, namely that the remaining provisions are "valid." See Waldrup v. Dugger, 562 So.2d 687, 693 (Fla.1990). Here, we have determined that the ordinances suffer from other constitutional failings which render them invalid. Thus, seve......
  • State v. T.M., No. SC02-2452 (FL 11/18/2004), No. SC02-2452.
    • United States
    • United States State Supreme Court of Florida
    • November 18, 2004
    ...ignores an important adjective in the first part of this test, namely that the remaining provisions are "valid." See Waldrup v. Dugger, 562 So. 2d 687, 693 (Fla. 1990). Here, we have determined that the ordinances suffer from other constitutional failings which render them invalid. Thus, se......
  • B.H. v. State, No. 82361
    • United States
    • United States State Supreme Court of Florida
    • November 23, 1994
    ...re Hunter, 387 So.2d 1086, 1090 (La.1980). Perhaps the clearest application of these principles in Florida occurred in Waldrup v. Dugger, 562 So.2d 687 (Fla.1990). There, the Court confronted a situation in which the legislature approved a law reducing certain gain-time awards to inmates, w......
  • Request a trial to view additional results
66 cases
  • Granite State Outdoor Adver. v. City of Clearwater, No. 8:01CV1663T30MSS.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • July 23, 2002
    ...the one without the other, and (4) an act complete in itself remains after the invalid provisions are stricken." Waldrup v. Dugger, 562 So.2d 687, 693 (Fla.1990) (challenging application of revised gain time statute for habeas corpus challenge). The Florida Supreme Court simply stated: "[t]......
  • State v. JP, No. SC02-2288
    • United States
    • United States State Supreme Court of Florida
    • November 18, 2004
    ...ignores an important adjective in the first part of this test, namely that the remaining provisions are "valid." See Waldrup v. Dugger, 562 So.2d 687, 693 (Fla.1990). Here, we have determined that the ordinances suffer from other constitutional failings which render them invalid. Thus, seve......
  • State v. T.M., No. SC02-2452 (FL 11/18/2004), No. SC02-2452.
    • United States
    • United States State Supreme Court of Florida
    • November 18, 2004
    ...ignores an important adjective in the first part of this test, namely that the remaining provisions are "valid." See Waldrup v. Dugger, 562 So. 2d 687, 693 (Fla. 1990). Here, we have determined that the ordinances suffer from other constitutional failings which render them invalid. Thus, se......
  • B.H. v. State, No. 82361
    • United States
    • United States State Supreme Court of Florida
    • November 23, 1994
    ...re Hunter, 387 So.2d 1086, 1090 (La.1980). Perhaps the clearest application of these principles in Florida occurred in Waldrup v. Dugger, 562 So.2d 687 (Fla.1990). There, the Court confronted a situation in which the legislature approved a law reducing certain gain-time awards to inmates, w......
  • Request a trial to view additional results

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