Calamia v. SingletaryCalamia v. Singletary
Russell Calamia petitions this Court for a writ of habeas corpus; Jeffrey Lynn Hock petitions this Court for a writ of mandamus. We have jurisdiction.
Petitioners, both inmates, allege that the interpretation of sections
Calamia‘s petition for writ of habeas corpus was filed with this Court on July 27, 1994. This Court denied the petition. Calamia v. Singletary, 645 So.2d 450 (Fla.1994). The United States Supreme Court vacated the denial of the petition and remanded it here for reconsideration in light of California Department of Corrections v. Morales, 514 U.S. 499, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995). Calamia v. Singletary, ___ U.S. ___, 115 S.Ct. 1995, 131 L.Ed.2d 998 (1995).
Calamia was charged with first-degree murder for a homicide committed January 3, 1986. At trial, he agreed to plead nolo contendere to the reduced charge of second-degree murder. On January 14, 1988, he was sentenced to twenty years in prison, including a three-year minimum mandatory sentence for possession of a firearm.
Hock was charged with first-degree murder for a homicide committed on October 1, 1988. He was found guilty of second-degree murder. On May 11, 1990, Hock was sentenced to thirty-two years in prison followed by ten years’ probation.
In 1987, the legislature enacted
As a consequence of prison overcrowding, the Secretary awarded Calamia provisional credits of 420 days and Hock provisional credits of 360 days. However, effective January 1, 1990,
The petitioners’ ex post facto arguments have been considered by this Court in previous decisions. In Blankenship v. Dugger, 521 So.2d 1097, 1098-99 (Fla.1988), this Court rejected an argument that
In Dugger v. Rodrick, 584 So.2d 2 (Fla. 1991), cert. denied, 502 U.S. 1037, 112 S.Ct. 886, 116 L.Ed.2d 790 (1992), we quashed the district court of appeal‘s decision directing the trial court to grant a prisoner‘s petition for writ of mandamus which asserted that the denial of provisional credits under
[T]he eligibility and receipt by a prisoner of provisional credits for prison overcrowding, regardless of what they are called, is in no way tied to overall length of sentence. The need for and application of such awards are contingent upon many outside variables that contribute to prison overcrowding. There is no relationship to the original penalty assigned to the crime at the time it was committed nor to the ultimate punishment meted out. The sole purpose of the early-release statutes is to provide a temporary mechanism to alleviate the administrative crisis created by prison overcrowding while continuing to protect the public from violent offenders. The statutes, procedural in nature, are not directed toward the traditional purposes of punishment.
Rodrick, 584 So.2d at 4. We reiterated this position in Dugger v. Grant, 610 So.2d 428, 430 (Fla.1992), by pointing out once again that the administrative gain-time statutes were enacted not for the benefit of prisoners but merely as a procedure utilized by the Department of Corrections to alleviate prison overcrowding.
Likewise, in Griffin v. Singletary, 638 So.2d 500 (Fla.1994), we upheld the cancellation of a prisoner‘s provisional credit based on the authority of opinion 92-96 of the Florida Attorney General and
[W]e believe the state has identified a legally sufficient reason to revoke provisional credits/administrative gain time for inmates such as Griffin. Revocation for present purposes has been confined to those inmates convicted of especially serious crimes, including murder, certain offenses against children, and certain sexual offenses. In Griffin‘s case, the crime was second degree murder. We believe the state has a more than sufficient reason because of its need to protect society in general from certain categories of felons.
Given the inherently contingent nature of provisional credits and administrative
gain time and the strong societal interest, we hold that the courts may not go behind the state‘s decision to cancel the provisional credits and administrative gain time of this inmate. This conclusion is only reinforced by the fact that the instant cancellation was pursuant to newly enacted legislation that will be applicable to all similarly situated inmates. Absent this legislative authorization, DOC might have been required to initiate proceedings to cancel the credits/gain time.
The petition for certiorari in Rodrick was denied by the United States Supreme Court. Nothing has changed since our decisions in Blankenship, Grant, and Griffin, or since the United States Supreme Court denied certiorari in Rodrick, except that the United States Supreme Court remanded the instant cases for reconsideration in light of its recent decision in Morales. Calamia, ___ U.S. at ___, 115 S.Ct. at 1996. Ironically, the Morales Court rejected a prisoner‘s contention that a reduction in the frequency of hearings to determine eligibility for parole violated the Ex Post Facto Clause. ___ U.S. at ___, U.S. ___, 115 S.Ct. at 1601-05. The Morales Court reiterated the same principles and relied upon the same cases that we had considered in Blankenship, Rodrick, Grant, and Griffin. In fact, the Morales analysis of the Ex Post Facto Clause supports our prior holdings:
Our opinions in Lindsey, Weaver, and Miller suggested that enhancements to the measure of criminal punishment fall within the ex post facto prohibition because they operate to the “disadvantage” of covered offenders. See Lindsey [v. Washington], 301 U.S., [397] at 401, 57 S.Ct., [797] at 799 [81 L.Ed. 1182 (1937)]; Weaver [v. Graham], 450 U.S., [24] at 29, 101 S.Ct., [960] at 964 [67 L.Ed.2d 17 (1981)]; Miller [v. Florida], 482 U.S., [423] at 433, 107 S.Ct., [2446] at 2452-53 [96 L.Ed.2d 351 (1987)]. But that language was unnecessary to the results in those cases and is inconsistent with the framework developed in Collins v. Youngblood, 497 U.S. 37, 41, 110 S.Ct. 2715, 2718, 111 L.Ed.2d 30 (1990). After Collins, the focus of the ex post facto inquiry is not on whether a legislative change produces some ambiguous sort of “disadvantage,” nor, as the dissent seems to suggest, on whether an amendment affects a prisoner‘s ”opportunity to take advantage of provisions for early release,” see post, at 1607, but on whether any such change alters the definition of criminal conduct or increases the penalty by which a crime is punishable.
Morales, ___ U.S. at ___ n. 3, 115 S.Ct. at 1602 n. 3. Thus, the United States Supreme Court has receded from its earlier position that enhancements to the measure of criminal punishment which operate to “disadvantage” applicable offenders fall within the ex post facto prohibition of the constitution. As the Court now explains, the Ex Post Facto Clause only comes into play when a legislative change “alters the definition of criminal conduct or increases the penalty by which a crime is punishable.” Id. Clearly, the cancellation of provisional credits has no relationship to the penalties for the crimes which petitioners committed.
The lower federal courts also agree with our decisions holding that administrative gaintime and provisional credit statutes are administrative and procedural in nature and not subject to ex post facto proscriptions. For example, the recent decision in Magnotti v. Singletary, No. 93-8554-CIV-MORENO (S.D.Fla. Mar. 24, 1994) (unpublished order adopting the report of the magistrate judge dated March 21, 1994), cited with approval our decision in Griffin and adopted the report of the magistrate judge which stated that “[t]he provisional credits in § 944.277 were contemplated not as a prisoner entitlement but merely as an escape valve which would be triggered only by the need to alleviate overcrowding in the state prison system.” Magistrate judge‘s report at 6. Magnotti was affirmed in an unpublished opinion by the Eleventh Circuit Court of Appeals. See Magnotti v. Singletary, 67 F.3d 314 (11th Cir.1995). Similarly, in Eastman v. Singletary, No. 94-869-CIV-DLG (S.D.Fla.1994)
In another case addressing a prior petition by Hock, one of the prisoners in this case, the Eleventh Circuit Court of Appeals stated:
[T]he retroactive application of control release does not actually disadvantage the petitioner by reducing his opportunity to shorten his time in prison. Because control release is based on an arbitrary and unpredictable determinant, the prison population level, an inmate has no reasonable expectation at the time he is sentenced that the prison population will reach the specified triggering level and that his incarceration will therefore be reduced.
Hock v. Singletary, 41 F.3d 1470, 1472-73 (11th Cir.1995), cert. denied, ___ U.S. ___, 116 S.Ct. 715, 133 L.Ed.2d 668 (1996). In addition, the State posits that in a number of other cases, federal district courts have held that Florida‘s administrative gain-time and provisional credit statutes do not run afoul of ex post facto proscriptions. See, e.g., Williams v. Dugger, No. 90-602-CIV-T-3A98(A) (M.D. Fla. June 7, 1991); Stafford v. Dugger, No. 89-295-CIV-J-16 (M.D.Fla. July 10, 1990); Aman v. Martinez, No. 88-50124-RV (N.D.Fla. May 8, 1989); Manzanero v. Dugger, No. 88-6076-CIV-SCOTT (S.D.Fla. Sept. 29, 1988); Petrone v. Dugger, No. 88-12041-CIVATKINS (S.D.Fla. Aug. 29, 1988), aff‘d, 886 F.2d 1323 (11th Cir.1989).
Further, in Monroe v. Florida Legislature, 641 So.2d 863 (Fla.1994), we denied the prisoner‘s petition on the authority of our decision in Griffin. Monroe, 641 So.2d at 864. Griffin presented the same issues that are being argued by the prisoners in the instant cases. Subsequent to its remand of the instant cases, the United States Supreme Court denied the petition for certiorari to review our decision in Monroe. Monroe v. Florida Legislature, ___ U.S. ___, 115 S.Ct. 2559, 132 L.Ed.2d 812 (1995). Thus, it is clear that the United States Supreme Court has not manifested any disapproval of our decisions holding that the retroactive cancellation of administrative gain time and provisional credits does not violate the Ex Post Facto Clause. To now reverse course and reinstate the administrative or provisional gain time would provide an unearned and unwarranted windfall to thousands of prisoners.
The petitioners’ remaining arguments are without merit. We deny the petitions.7
It is so ordered.
KOGAN, C.J., and OVERTON and WELLS, JJ., concur.
HARDING, J., dissents with an opinion, in which SHAW and ANSTEAD, JJ., concur.
HARDING, Justice, dissenting.
I respectfully dissent. I would hold that the retrospective application of
I am aware that by providing administrative gain-time to permit the early release of
This Court has already recognized this reality in Justice Overton‘s well-reasoned analysis in Gwong v. Singletary, 683 So.2d 109 (Fla.1996), where the Court unanimously held that the retroactive taking of the ability to earn incentive gain-time constituted an ex post facto violation. In Gwong, we emphasized that even the “mere expectancy” of the availability of incentive gain-time implicated the Ex Post Facto Clause. Gwong, 683 So.2d at 110-11. I do not believe that this analysis fails here simply because we call one form of gain-time “incentive” and the other “administrative” or “provisional.”
The Supreme Court directed us to reexamine our treatment of the provisional-credit issue in light of California Department of Corrections v. Morales, 514 U.S. 499, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995). After analyzing that case—and the cases it cites for support—I would now conclude that our determination in Blankenship, Rodrick, and Griffin that provisional credits did not implicate the Ex Post Facto Clause because they were purely procedural was incorrect.9
This conclusion squares with the Supreme Court‘s decision in Morales. There, the Supreme Court found that the legislation at issue (concerning decreasing the frequency of parole hearings) did not violate the Ex Post Facto Clause because it created only an “attenuated possibility” of increasing the measure of punishment for the crimes covered, relying in part on the fact that “the amendment applie[d] only to a class of prisoners for whom the likelihood of release on parole is quite remote.” Morales, 514 U.S. at ___, 115 S.Ct. at 1603. Even with decreased frequency of parole hearings, the Supreme Court found that “there is no reason to think that [postponement of a hearing] would extend any prisoner‘s actual period of confinement.” Morales, 514 U.S. at ___, 115 S.Ct. at 1605.
Here, there is every reason to think that revoking already-awarded provisional credits will extend prisoners’ actual periods of confinement. The risk of such increase is neither tenuous nor speculative; it is, rather, direct and definite. The Supreme Court has already decided that the risk inherent in revocation of gain-time is substantial: “It is plainly to the substantial disadvantage of [inmates] to be deprived of all opportunity to receive a sentence which would give them freedom from custody and control prior to the expiration of the [term sentenced].” Lindsey v. Washington, 301 U.S. 397, 401-02, 57 S.Ct. 797, 799, 81 L.Ed. 1182 (1937). I believe this concern holds just as true for provisional credits as for incentive and basic gain-time awards. Before the application of the statutes, inmates had been awarded credits which would give them freedom from
Revoking the credits at issue—and the possibility to continue to earn them—constitutes a textbook ex post facto violation. For a law to violate the clause, “two critical elements must be present: first, the law `must be retrospective, that is, it must apply to events occurring before its enactment;’ and second, `it must disadvantage the offender affected by it.‘” Miller v. Florida, 482 U.S. 423, 430, 107 S.Ct. 2446, 2451, 96 L.Ed.2d 351 (1987) (quoting Weaver, 450 U.S. at 29, 101 S.Ct. at 964-65). Morales makes it clear that an “ambiguous” disadvantage is not sufficient; it is important to look at whether a change in the law “alters the definition of criminal conduct or increases the penalty by which a crime is punishable.” Morales, 514 U.S. at ___, n. 3, 115 S.Ct. at 1602, n. 3. It is important to note that “a law need not impair a `vested right’ to violate the ex post facto prohibition.... The presence or absence of an affirmative, enforceable right is not relevant... to the ex post facto prohibition....” Weaver, 450 U.S. at 29-30, 101 S.Ct. at 964-65 (citations omitted).
Clearly, the sections at issue here apply retrospectively:
It is equally apparent that the sections “disadvantage” petitioners, and others in their situation, and increase the penalty by which their crimes are punished. In plainest terms, the sections resulted in a recalculation of release dates which lengthened the amount of time affected prisoners would spend incarcerated. Accordingly, I cannot accept the majority‘s position that the statutes are purely procedural in nature and thus do not even trigger the clause.
The majority relies in part on our decision in Dugger v. Rodrick, 584 So.2d 2 (Fla.1991), for support. In Rodrick, we looked at a similar challenge to the provisional credit scheme. At the time Rodrick was sentenced, he was eligible for provisional credits under
We based our decision in Rodrick largely on our earlier decision in Blankenship v. Dugger, 521 So.2d 1097 (Fla.1988). There, the defendant was eligible at sentencing for treatment under
We explicitly relied on Rodrick in Griffin v. Singletary, 638 So.2d 500 (Fla.1994), where we wrote “[w]e elsewhere have held that any due process interest in the provisional credit is far less, due to its peculiarly contingent nature and the fact that the state has great discretion in revoking or limiting provisional credits.” Griffin, 638 So.2d at 501 (citing Rodrick). Although our ultimate holding in Griffin was that there was no due process violation involved in cancelling administrative gain-time, we echoed our position from Rodrick that there was also no ex post facto violation. Griffin, 638 So.2d at 501.
While it is true that changes in legislation which affect only procedural matters are free from the application of the clause, see, e.g., Morales, 514 U.S. at ___, 115 S.Ct. at 1602; Dobbert v. Florida, 432 U.S. 282, 293, 97 S.Ct. 2290, 2298, 53 L.Ed.2d 344 (1977); Hopt v. Utah, 110 U.S. 574, 590, 4 S.Ct. 202, 210, 28 L.Ed. 262 (1884), the Supreme Court has held that “a change in the law that alters a substantial right can be ex post facto `even if the statute takes a seemingly procedural form.‘” Miller, 482 U.S. at 433, 107 S.Ct. at 2453 (quoting Weaver, 450 U.S. at 29, n. 12, 101 S.Ct. at 964, n. 12).
The Supreme Court has clearly held that a law does not have to affect something “earned” to violate the Ex Post Facto Clause: “[E]ven if a statute merely alters penal provisions accorded by the grace of the legislature, it violates the Clause if it is both retrospective and more onerous than the law in effect on the date of the offense.” Weaver, 450 U.S. at 30-31, 101 S.Ct. at 965. It is irrelevant whether or not gain-time was technically part of a defendant‘s sentence, because it “in fact is one determinant of [a defendant‘s] prison term—and ... [the] effective sentence is altered once this determinant is changed.” Weaver, 450 U.S. at 32, 101 S.Ct. at 966. See also Lindsey v. Washington, 301 U.S. 397, 401-02, 57 S.Ct. 797, 799, 81 L.Ed. 1182 (1937). Further, the Supreme Court recognized that “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.” Weaver, 450 U.S. at 32, 101 S.Ct. at 966. See also Wolff v. McDonnell, 418 U.S. 539, 557, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974); Warden v. Marrero, 417 U.S. 653, 658, 94 S.Ct. 2532, 2535-36, 41 L.Ed.2d 383 (1974).
I see no practical difference, in terms of analysis for ex post facto purposes, between revoking awards of incentive gain-time and provisional credits. In Waldrup v. Dugger, 562 So.2d 687 (Fla.1990), this Court considered Florida‘s incentive gain-time provisions. There we wrote: “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‘....” Waldrup, 562 So.2d at 689. We went on to question whether “mandatory” gain-time has ever actually existed in Florida. Id. at 692. There, we ultimately held that retrospectively applying narrower provisions governing the award of incentive gain-time constituted an ex post facto violation. Waldrup, 562 So.2d at 692.
Even though the credits here may be called “administrative,” they factored into inmates’ sentences exactly as incentive and basic gain-time did. The statutes authorizing the credits called for calculation of a release date based on the credits, and established a scheme for the DOC to follow in releasing inmates from incarceration. Clearly, provisional credits affect substantive rights.
The majority indicates that reversing course and reinstating the gain-time lost (which would, actually, be re-reversing
I would hold that the provisions of sections
Our words in Waldrup—dealing with the incentive gain-time statute—are equally germane to my interpretation of the issue now before us:
Nothing in this opinion ... shall be read as restricting the discretion accorded DOC under the earlier incentive gain-time statutes. This discretion remains intact. If DOC withholds all or some of the incentive gain-time available [to eligible inmates], then DOC‘s actions cannot be challenged unless they constitute an abuse of discretion. This however, is not an issue for the present Court to decide.
Waldrup, 562 So.2d at 692-93. Therefore, although the DOC would be required to continue to apply the statutes in effect when Calamia, Hock, and similarly situated inmates committed their offenses, those statutes clearly say that if overcrowding conditions exist, the DOC may award provisional credits to all eligible inmates. Thus, in light of this discretion, the DOC would be under no obligation to invoke the statutes to award provisional credits for any periods of time other than those for which it had already granted credits. Because the DOC did invoke the statutes for certain periods of time, it should now be directed to restore the credits it awarded.
In light of the above I am compelled to dissent.
SHAW and ANSTEAD, JJ., concur.