DEPARTMENT OF CORRECTIONS, APPELLANT,
v.
HERMAN POWELL AND MARVIN HAND, APPELLEES
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The Department of Corrections appeals circuit court orders granting prisoners credit for incentive gain time against mandatory minimum sentences. The appellate court reverses, holding that the 1983 amendments to Florida statutes unambiguously prohibit application of statutory gain time, including incentive gain time, against mandatory minimum sentences imposed under section 775.087.
Inmates serving mandatory minimum sentences under section 775.087 are not eligible for incentive gain time credits to be applied against their mandatory minimum sentences. The 1983 amendments to sections 775.087(2) and 944.275 unambiguously prohibit application of statutory gain time, including incentive gain time, prior to completion of the mandatory minimum portion of the sentence, and the Department properly enacted rule 33-11.0065 to implement this statutory prohibition.
[1] A defendant serving a mandatory minimum sentence under section 775.087, Florida Statutes, is not eligible for statutory gain time, including incentive gain time, prior to…
[2] Amendments to sections 775.087 and 944.275, Florida Statutes, enacted after the James v. …
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Join FLexlaw to unlock all legal intelligence“a defendant serving a mandatory minimum sentence under that statute is not eligible for statutory gain time as provided in section 944.275, prior to serving his minimum sentence”
Establishes the unambiguous statutory prohibition on gain time credits before completion of mandatory minimum sentences following the 1983 amendments
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Join FLexlaw to unlock all legal intelligenceAppellees Powell and Hand were sentenced in January 1985 to prison terms including mandatory minimum sentences of three years under section 775.087, F…
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WIGGINTON, Judge.
Appellant, Department of Corrections (Department), appeals two orders of the circuit court granting appellees’ petitions for writs of mandamus requiring the Department to credit appellees with incentive gain time earned pursuant to section 944.-275(4)(b), Florida Statutes (1983), and declaring rule 33-11.0065(1), Florida Administrative Code, invalid. We reverse.
Appellees, who were both sentenced in January 1985 to prison terms, which included mandatory minimum sentences of three years pursuant to section 775.087, Florida Statutes (1983), filed their petitions seeking credit for earned incentive gain time to be applied against their mandatory minimum sentences. The Department had refused to grant such credit, relying upon the provision of section 775.087(2)(b), Florida Statutes (1983), that a defendant shall not be eligible for “statutory gain time under section 944.275, prior to serving his minimum sentence.” The Department also relied upon its own enacted rule 33-11.0065(1), Florida Administrative Code (which provides that an inmate serving a mandatory minimum sentence for a firearm violation in accordance with section 775.087 shall not be eligible for any incentive gain time award until completion of the mandatory portion of the sentence).
The trial court relied upon this Court’s 1982 decision in James v. Department of Corrections, 424 So. 2d 826 (Fla. 1st DCA 1982). In construing the 1979 version of sections 775.087 and 944.275, Florida Statutes, the James court concluded that section 775.087 did not, at that time, ban application of earned incentive gain time against a mandatory minimum sentence. However, following the James decision, the legislature amended sections 775.087(2) and 944.275, Florida Statutes, during the 1983 session, thereby correcting the statutory deficiencies cited in James.
As a result of those 1983 amendments, section 775.087(2) now provides, in unambiguous terms, that a defendant serving a mandatory minimum sentence under that statute is not eligible for statutory gain time as provided in section 944.275, prior to serving his minimum sentence. Section 944.275 provides for three types of gain time, including incentive gain time. Thus, incentive gain time clearly now is among the types of statutory gain time to be denied a prisoner serving a mandatory minimum sentence pursuant to section 775.087. The reasoning in James is not applicable to cases involving the current statutes. Consequently, the Department acted within its delegated legislative authority in enacting rule 33-11.0065 and in following that rule, as well as the pertinent statutes, in denying appellees credit for incentive gain time to be applied against their mandatory minimum sentences.
REVERSED.
ERVIN and BARFIELD, JJ., concur.
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State v. McKENZIE, 574 So. 2d 1176 (Fla. 5th DCA 1991)…eased early through provisional credits because of prison overcrowding. See, e.g., Bernadini, 540 So. 2d at 133, n. 1 (incentive gain time may be earned without regard to any minimum mandatory sentence language). Department of Corrections v. Powell, 504 So. 2d 1250 (Fla. 1st DCA 1986) indicates in a roundabout way that where statutes do not exclude the possibility of gain time, a mandatory minimum sentence may be reduced by gain time. An opposite view was taken by Weller v. State, 547 So. 2d 997 (Fla. 1st DCA…
Authorities Cited
- James v. Dep't OF Corr., 424 So. 2d 826 (Fla. 1st DCA 1982)