FLORIDA DEPARTMENT OF CORRECTIONS

v.

MCMILLAN C. GOULD

TANENBAUM, J.

The Department of Corrections asks us to review a trial court order granting a writ of mandamus that would require the department to consider McMillan Gould for incentive gain-time. Gould is in prison on a conviction for attempted sexual battery. According to the department, the trial court erred in granting the writ because the operative gain-time statute excludes from eligibility those convicted of violating the statute defining sexual battery as a crime. The department contends this exclusion applies to those convicted of attempting a violation of that statute. Even though the department has sought review through certiorari, the trial court did not issue the writ in its review capacity, so we treat this case as a direct appeal. Still, we disagree with the department’s statutory interpretation and affirm the order granting mandamus. In the course of doing so, we recede from this court’s previous pronouncement of a plainly incorrect legal principle regarding Florida’s general criminal attempt statute, which first appeared in Zopf v. Singletary, 686 So. 2d 680 (Fla. 1st DCA 1996), and was later adopted in Wilcox v. State, 783 So. 2d 1150 (Fla. 1st DCA 2001).1

I. Gould pleaded no contest to attempted sexual battery on a child under the age of twelve. The conviction was not based on an attempt that resulted in injury to the child’s sex organs.² The conviction instead was for “criminal attempt,” which is defined in section 777.04, Florida Statutes (2014). Gould’s judgment of conviction references both this statute and the sexual battery statute, section 794.011(2)(a), Florida Statutes (2014). He committed the crime sometime after October¹, 2014.

The trial court sentenced him to twenty-five years in prison.³ See § 944.275(4)(b)3., Fla. Stat. (2014) (allowing the department to “grant up to¹⁰ days per month of incentive gain-time” on sentences imposed for offenses committed after October¹, 1995).

Incentive gain-time is the sum of “deductions from sentences . . . in order to encourage satisfactory prisoner behavior, to provide incentive for prisoners to participate in productive activities, and to reward prisoners who perform outstanding deeds or services.” § 944.275(1), Fla. Stat.; see also id. (4)(b) (allowing for a monthly grant of incentive gain-time to an inmate who “works diligently, participates in training, uses time constructively, or otherwise engages in positive activities”).

The department advised Gould he is not eligible for incentive gain-time, citing section 944.275(4)(e), Florida Statutes. Paragraph (4)(e) provides that for sentences imposed on offenses committed on or after October¹, 2014, the department “may not grant incentive gain-time if the offense is a violation of . . . s. 794.011,” which defines “sexual battery” as a felony. The department considers Gould to be serving a sentence imposed for an offense that fits within this provision. Based on that reading,

the department will continue to exclude Gould, for the duration of this incarceration, from any consideration at all for a monthly gain-time credit against his sentence term. Gould sued the department in circuit court for a writ of mandamus. He sought to compel the department to consider him as eligible for incentive gain-time, both retrospectively and for the remainder of his sentence. Primarily in reliance on this court’s decision in Zopf, Gould averred that the department was “wrong” to declare him ineligible because he was convicted of the offense of criminal attempt to commit sexual battery, not the offense of sexual battery itself. In Zopf the prisoner, who was convicted of attempted sexual battery, appealed the denial of his request for mandamus compelling the department to consider him for basic gain-time. A provision had been added to the sexual battery statute itself (section 794.011(7), Florida Statutes) that rendered a prisoner “convicted of committing a sexual battery . . . not eligible for basic gain-time.”⁴ Even in that case, the department took the position that the prisoner was ineligible under that provision because he had been convicted of an offense under the sexual battery statute. In denying relief, the trial court reasoned that “the obvious legislative intent of section 794.011(7) [was to prevent] the early release of sexual offenders under that statute.” Zopf, 686 So. 2d at 681. Even though this court characterized “attempted sexual battery [as] a crime under section 794.011(2), Florida Statutes, as modified by the ‘attempt’ statute, section 777.04, Florida Statutes,” it reversed, stating that “[i]f the legislature had intended for the provisions of [subsection seven] to apply also to those persons, like the appellant, who were convicted of attempted sexual battery, then it would have been a simple matter to state it plainly in the statute.” Id. The court held that the department “may not rely on subsection (7) to deny Zopf’s eligibility automatically.” Id. at 682.

In the proceeding below, the department responded to the trial court’s show cause order5 and attempted to distinguish Zopf. The department pointed out that the statutory provision it relied on in automatically denying Gould eligibility, section 944.275(4)(e), is not the same as the provision under consideration in Zopf. It argued that subsection (4)(e) “does not explicitly name any offense; rather, it refers to particular statutory sections and subsections.” As the department put it, the “scope [of the subsection] is therefore broader, because anyone who is convicted of an attempt to commit a crime is never convicted solely under the attempt statute (Section 777.04(1)); rather, he is convicted under a particular criminal statute as modified by the attempt statute.” This language came from our en banc decision in Wilcox. There, albeit in a different statutory context, this court held that the attempt statute, section 777.04(1), effectively modifies the sexual battery statute, section 794.011(2), such that a conviction for the offense of criminal attempt to commit sexual battery “is an offense under chapter 794, Florida Statutes.” Id. at 1150.

The trial court agreed with Gould and rejected the department’s reliance on Wilcox, reading this court’s reference to Zopf as indicative of the latter decision “still being good law.” The court granted Gould the relief he sought: a writ that would preclude the department from automatically denying him gain-time eligibility and instead would compel it to exercise its discretion. The writ would require the department to consider Gould “as eligible for gain time and to award him any and all gain time which he should have earned for time served to date.” II. The department sought “second-tier” appellate review from this court in the form of certiorari. See Sheley v. Fla. Parole Comm’n, 720 So. 2d 216, 217–18 (Fla. 1998) (holding that a district court reviews a trial court’s denial of relief while operating in a “review capacity” via certiorari because there is no entitlement to “a second plenary appeal on the merits”); Fla. Parole Comm’n v. Taylor, 132 So. 3d 780, 784 (Fla. 2014) (adhering to Sheley and again concluding “that second-tier certiorari relief should be granted only where the circuit court departed from the essential requirements of law and that departure resulted in a miscarriage of justice”).

We, however, treat the department’s petition as a request for direct appellate review of the trial court’s final order. Cf. Johnson v. Citizens State Bank, 537 So. 2d 96, 97 (Fla. 1989) (“There is no question that an appellate court has jurisdiction to review a cause even though the form of appellate relief is mischaracterized.”); see also Skinner v. Skinner, 561 So. 2d 260, 262 (Fla. 1990) (concluding that even though a party mischaracterized an appeal as a petition for writ of certiorari, the court possessed jurisdiction to review as a notice of appeal); see Art. V, § 2(a), Fla. Const. (authorizing the supreme court to adopt a “requirement that no cause shall be dismissed because an improper remedy has been sought”); Fla. R. App. P. 9.040(c).

Before turning to review of the final order, then, we must explain why we are handling the case in this way. In doing so, we also hope to clear up some confusion that has developed regarding what sometimes are called “Sheley appeals.” The confusion perhaps emanates from a subtle distinction between two ways a writ of mandamus may operate against an administrative agency vested with discretionary authority over a matter impacting an individual right. Mandamus is an ancient writ rooted in English common law. It was used “to prevent disorder from a failure of justice” where there was no other remedy but “where in justice and good government there ought to be one.” Towle v. State ex rel. Fisher,³ Fla. 202, 209 (1850) (quoting Lord Mansfield).

The writ became known in the United States as a command issuing from a common law court of competent jurisdiction, in the name of the state or sovereign, directed to some corporation, officer, or inferior court, requiring the performance of a particular duty therein specified, which duty results from the official station of the party to whom the writ is directed, or from operation of law. JAMES L. HIGH, A TREATISE ON EXTRAORDINARY LEGAL REMEDIES, EMBRACING MANDAMUS, QUO WARRANTO AND PROHIBITION (2d ed.

1884).

The writ “lies to enforce a ministerial act,” and the petitioner must have a “clear” right to the performance of that act. City of Miami Beach v. State ex rel. Epicure, Inc.,⁴ So. 2d 116, 117 (Fla. 1941). “A ministerial act is distinguished from a judicial act in that in the former the duty is clearly prescribed by law, the discharge of which can be performed without the exercise of discretion.” Id. Historically, “[i]f the discharge of the duty requires the exercise of judgment or discretion the act is not ministerial and mandamus will not lie.” Id. At the same time, mandamus has remained consistently available in Florida over the years to order an officer to exercise his discretion where it is his duty to do so. Towle,³ Fla. at 210 (distinguishing between the proper use of mandamus, which can order an officer “who acts in a judicial or deliberative capacity . . . to proceed to do his duty, by deciding according to the best of his judgment,” and the impermissible use of mandamus, which cannot “direct [the officer] in what manner to decide”); see also State ex rel. Moody v. Barnes,⁵ So. 722, 724–25 (Fla. 1889) (explaining in matters that require the exercise of official judgment or discretion, “mandamus will not lie, either to control the exercise of that discretion or to determine upon the decision which shall be finally given,” but it will lie “to set them in motion” and require their exercise of “judgment and discretion” (internal quotation and citation omitted)).

The scope of mandamus quickly expanded to reach more than just an officer’s failure to exercise discretion, as the supreme court saw little distinction between that outright failure and an illegal exercise of that discretion. Barnes,⁵ So. at 725 (treating discretion exercised “capriciously, arbitrarily, or oppressively” as “being equivalent to a refusal to act”); see also id. at 727 (explaining that mandamus may be used to compel the exercise of discretion free from a “mistake [] made in law not germane to the discretion”); cf. Towle,³ Fla. at 211 (suggesting that mandamus may be used by a superior tribunal to compel a lower tribunal to exercise discretion in accordance with “established legal principles” (citation omitted)).

By the 1940s, the supreme court approved the use of mandamus to control the exercise of discretion that “is abused and illegally violates rights of complaining parties.” Nelson v. Lindsey,¹⁰ So. 2d 131, 133 (Fla. 1942).

Parallel to this expansion of mandamus, the supreme court had started allowing the writ, under some circumstances, to serve as an avenue for judicial review of administrative action that involved fact-finding. See State ex rel. Pinellas Kennel Club v. State Racing Comm’n, 156 So. 317, 317 (Fla. 1934) (“When discretion is given by law, but is arbitrarily or clearly erroneously exercised or abused by the official action of a board, such as the state racing commission, such official action is subject to judicial review on mandamus, and redress may be had on such writ, where no other adequate legal remedy exists.”); but cf. De Groot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957) (noting that mandamus “is not an appellate writ” and “not an appropriate process to obtain a review of an order entered by a judicial or quasi-judicial agency acting within its jurisdiction”); Solomon v. Sanitarians’ Registration Bd., 155 So. 2d 353, 356 (Fla. 1963) (“Similarly, mandamus cannot be employed as an appellate remedy to review quasi-judicial action of an administrative agency.”).

To be sure, even for the court in De Groot and Solomon, some discretionary administrative action could be subject to judicial review. In both cases, the court distinguished between a “quasi-judicial” function and an “executive” function. If “notice and a hearing are required and the judgment of the board is contingent on the showing made at the hearing, then its judgment becomes judicial or quasi-judicial as distinguished from being purely executive.” De Groot, 95 So. 2d at 915; accord Solomon, 155 So. 2d at 356. The supreme court observed that because “certiorari is in the nature of an appellate process, [that writ] is a method of obtaining [appellate] review” of an order entered by an agency in a quasi-judicial capacity, “as contrasted to a collateral assault” through mandamus. De Groot, 95 So. 2d at 916; accord Solomon, 155 So. 2d at 356; see also Sirmans v. Owen, 100 So. 734, 735 (Fla. 1924) (“The writ of certiorari lies only to review the actions of courts, boards, or officers exercising functions clearly judicial or quasi judicial.”).

An agency’s exercise of discretion while it operates in an executive or purely administrative capacity is off-limits from judicial review but remains “subject to direct or collateral attack.” De Groot, 95 So. 2d at 914; see Solomon, 155 So. 2d at 356 (explaining that “a purely ministerial function” of an agency “may be compelled by mandamus”).

In 1974, against this historical backdrop, the supreme court used mandamus to correct what it perceived to be a constitutional infirmity in a quasi-judicial proceeding conducted by the parole commission. See Moore v. Fla. Parole & Prob. Comm’n, 289 So. 2d 719 (Fla. 1974).

According to the court, “[w]hile there is no [absolute] right to parole, there is a right to a proper consideration for parole,” and a prisoner is entitled “to have the question of his eligibility for parole determined upon evidence which passes constitutional muster.” Id. at 720.

In turn, the parole commission must “comply with constitutional requirements” and “cannot deny parole upon illegal grounds or upon improper considerations. It is answerable in mandamus if it does.” Id. To fit the relief within the historical use of mandamus outlined above, the supreme court put what it was doing in the following terms: In short, the alternative writ does not direct itself toward the issue of whether parole should be granted to the petitioner, but to the issue of whether certain matters were and should have been considered by respondent in its denial of parole to the petitioner. The writ itself, if it be granted after respondent has responded to the alternative writ, would not command the respondent’s discretion, but rather would compel the respondent to exercise its discretion as to the granting or denial of parole without [the improper] consideration of the aforementioned convictions. Id. (emphasis supplied).

Going forward, mandamus became the accepted method of “judicial review” of parole commission quasi-judicial determinations. See Griffith v. Fla. Parole & Prob. Comm’n, 485 So. 2d 818, 820 (Fla. 1986); see also Sheley, 720 So. 2d at 217 (“Mandamus is an accepted remedy for reviewing an order of the Florida Parole Commission.”); but cf. Sheley v. Fla. Parole Comm’n, 703 So. 2d 1202, 1205 n.2 (Fla. 1st DCA 1997), approved, 720 So. 2d 216 (Fla. 1998) (noting that the use of mandamus to review the merits of a parole commission order was “well beyond its limited function” and questioning whether “certiorari might have been a more appropriate remedy”).

The same year that Moore came out, the United States Supreme Court held that prison inmates are constitutionally entitled to certain “minimum procedures” in disciplinary proceedings where they have a “liberty” interest at stake (e.g., loss of “good time credits”) to ensure “that the state-created right is not arbitrarily abrogated.” Wolff v. McDonnell, 418 U.S. 539, 556–57 (1974); see also id. at 558 (“Since prisoners in Nebraska can only lose good-time credits if they are guilty of serious misconduct, the determination of whether such behavior has occurred becomes critical, and the minimum requirements of procedural due process appropriate for the circumstances must be observed.”).

Mandamus in Florida of course expanded to cover review of prison quasi-judicial disciplinary proceedings to ensure the minimum due process requirements were being observed in that context too. See, e.g., Plymel v. Moore, 770 So. 2d 242, 247–49 (Fla. 1st DCA 2000) (noting that under Wolff, “[i]n a prison disciplinary proceeding, an inmate is entitled to: (1) advance written notice of the disciplinary charges; (2) an opportunity to call witnesses and present documentary evidence regarding his case; and (3) a written statement of the evidence relied on and reasons for the disciplinary action”; and that mandamus can be used to compel the department to comply with its procedural rules that secure to the prisoner the constitutional minimum of due process); see also Woullard v. Bishop, 734 So. 2d 1151, 1152 (Fla. 1st DCA 1999) (confirming that mandamus “is the appropriate remedy for seeking review of a prison disciplinary proceeding allegedly conducted in violation of constitutional requirements or the rules of the Department of Corrections”); Adams v. Wainwright, 512 So. 2d 1077, 1078 (Fla. 1st DCA 1987) (explaining that mandamus is the appropriate remedy to enforce a prison official’s “duty under the United States Constitution” to allow a prisoner to call witnesses in a disciplinary proceeding where he faces the loss of gain time).

This is where the historical review of mandamus puts us. When a trial court considers a mandamus complaint that challenges the constitutional sufficiency of a quasi-judicial prison or parole commission proceeding, it necessarily will engage in judicial review of that proceeding. A final order on that type of complaint “is reviewable in the district court by certiorari pursuant to Florida Rule of Appellate Procedure 9.030,” which provides for “certiorari jurisdiction” to review a final order of a trial court acting in its “review capacity.” Sheley, 720 So. 2d at 217; see Fla. R. App. P. 9.030(b)(2)(B); cf. City of Deerfield Beach v. Vaillant,

419 So. 2d 624, 626 (Fla. 1982) (holding that a final order of a trial court “acting in its review capacity to review administrative action” is not appealable to the district court as a matter of right because the agency action “has already been directly ‘appealed’ to the” trial court); see also Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995) (explaining that where a trial court reviews agency action, it in essence functions “as an appellate court, and, among other things, is not entitled to reweigh the evidence or substitute its judgment for that of the agency,” so review in the district court is by certiorari).⁶ A district court, then, must consider qualitatively the underlying complaint to determine how to handle review of the trial court’s order. If the request for mandamus necessitated a review by the trial court of a quasi-judicial administrative hearing to determine whether minimum due process expectations were met, the review in the district court will be by second-tier certiorari. If the complaint instead asked the trial court simply to order an administrative officer to exercise his discretion—after the officer had refused in the face of the complainant’s clear legal right to it—this court’s review of the disposition on such a request will be by direct appeal. Gould’s complaint for mandamus did not challenge the department’s compliance with constitutional demands of due process in connection with the determination of his entitlement to incentive gain-time. He did not ask the trial court to act as an appellate court and review a quasi-judicial proceeding for constitutional sufficiency. Indeed, there was no quasi-judicial proceeding at all, because the department refused to exercise its discretion.

The mandamus that Gould sought was to compel the department to exercise its discretion in the first place and consider him for incentive gain-time. He asserted that the incentive gain-time statute gave him a clear legal right to be considered, and even though the department’s determination of his entitlement is discretionary, it had a legal duty to consider him. This type of complaint for mandamus seeks the traditional common-law relief discussed above, so it seeks the relief from the trial court qua a trial court, not an appellate court. The final order of the trial court granting Gould relief “is reviewable by appeal.” Sheley, 703 So. 2d at 1206; cf. Zopf, 686 So. 2d at 680 (reviewing order denying mandamus as a direct appeal where prisoner sought to compel the department to consider him for gain-time); see also Miller v. Dugger, 565 So. 2d 846 (Fla. 1st DCA 1990) (same).

We in turn treat the department’s petition as a request for plenary appellate review. Because the trial court based its order granting mandamus relief on a statutory interpretation and not on a resolution of a fact dispute, we review the order de novo.

III. We mentioned at the beginning that the order under review grants mandamus. The writ would compel the department to consider Gould for incentive gain-time under section 944.275(4)(b), Florida Statutes. Notably, the writ would not require a grant of incentive gain-time. The mandamus granted by the trial court simply would require that the department exercise its discretion; it would not purport to direct the department on what the result of that discretion must be. As we discussed in the preceding part, this was an appropriate use of mandamus. The question for us in this case boils down to whether Gould has a clear legal right to the exercise of discretion by the department when it comes to incentive gain-time. He has that entitlement only if his offense of conviction is not a “violation of” section 794.011. Otherwise, he would be ineligible for consideration and not entitled to mandamus. To provide an answer here, we must consider whether the analysis in Wilcox is correct. We decided to hear this case en banc because Wilcox cannot be reconciled with the language of section 777.04. See Fla. R. App. P. 9.331(a); First DCA Internal Operating Procedure 6.3. Even though Wilcox addressed a different statute (dealing with when sex offender probation should be imposed), it baldly imposes an approach to applying section 777.04 that does not conform to its text. Wilcox is wrong. Because the stated legal principle that drove the result in Wilcox would otherwise be applicable to nearly identical statutory language in this case, receding from Wilcox is necessary to a textually consistent application of statutory cross-references like the one found in paragraph (4)(e). That is what we do here in order to maintain clarity about the nature of the offense of criminal attempt in this district.

A. Wilcox considered a challenge to the imposition of sex offender conditions of probation. 783 So. 2d at 1150. At the time, section 948.03 provided for those conditions for “violation of chapter 794.” § 948.03(5)(a), Fla. Stat. (1998); see also id. (4)(b).

The appellant in that case had been convicted of “attempted capital sexual battery,” and he argued that sex offender conditions did not apply to him because his criminal attempt was a crime under chapter 777, not chapter 794. In a one-sentence analysis, as part of a two-paragraph opinion, this court stated as follows: “As we said in Zopf v. Singletary, 686 So. 2d 680, 681 (Fla. 1st DCA 1996), attempted sexual battery is ‘a crime under section 794.011(2), Florida Statutes, as modified by the ‘attempt’ statute, section 777.04, Florida Statutes.” Wilcox, 783 So. 2d at 1150–51.

We note that the text that Wilcox quoted from Zopf was an appositive phrase, i.e., it simply restated the charge to which the appellant in that case had pleaded to. The phrase was in the prefatory portion of the opinion, but the Zopf Court nevertheless seemed to accept the correctness of this proposition put forward by the department. Still, the stated “principle” (which itself is nowhere explicated) was not central to the disposition on account of the fact that the statute under consideration in Zopf was applicable to a person “convicted of committing a sexual battery” rather than someone convicted of violating a particular statutory provision. Zopf, 686 So. 2d at 681–82. In Zopf the court implicitly made a distinction between an exclusion based on such a reference (e.g., a violation of “section 794.011” or “chapter 794”) and one based on a reference to the common name for the crime (e.g., “sexual battery”).

This distinction, when considered with how Wilcox referenced the prefatory “as amended” language in Zopf, militates against the viability of the decision as support for the conclusion reached by the trial court in this case. We say this with an eye toward Wilcox’s express abrogation of Lee v. State, 766 So. 2d 374 (Fla. 1st DCA 2000), even though it purported to follow Zopf. The only feature that seemingly distinguishes the two cases is the statute being considered. Unlike in Zopf, the statute in Lee did apply to violations of “chapter 794,” among others (rather than to commonly known crimes like “sexual battery”).

Wilcox presumably disapproved of Lee, but not Zopf, because of the assumption that the criminal attempt provision in section 777.04 effectively amends any substantive criminal statute that a defendant attempts (but fails) to violate, such that a specific cross-reference to the substantive criminal statute (unlike a reference to the common name) includes both the violation of the substantive provision and the criminal attempt to do so. Regardless of its strained reliance on (and failure to recede from) Zopf, Wilcox is wrong to the extent it can be read to hold both that section 777.04 (the criminal attempt statute) modifies a substantive statute and that an attempt to commit the underlying crime is not a separate offense. Zopf also is wrong to the extent it suggests the viability of the same principle.

We now explain why this “principle” is wholly inconsistent with the text of section 777.04.

B.

Section 777.04(1), Florida Statutes defines the offense of criminal attempt as follows: A person who attempts to commit an offense prohibited by law and in such attempt does any act toward the commission of such offense, but fails in the perpetration or is intercepted or prevented in the execution thereof, commits the offense of criminal attempt, ranked for purposes of sentencing as provided in subsection (4).

Criminal attempt includes the act of an adult who, with intent to commit an offense prohibited by law, allures, seduces, coaxes, or induces a child under the age of 12 to engage in an offense prohibited by law. (emphasis supplied).

The criminal attempt statute does not cross-reference any other criminal offense provision or state that it serves to modify any such provision. The highlighted language instead points to a criminal attempt being an offense separate from the offense attempted. The language distinguishes between “an offense prohibited by law” and “the offense of criminal attempt.” Later paragraphs in the statute repeatedly reference “criminal attempt” as a free-standing offense. For example, subsection (4) states the phrase “the offense of criminal attempt” six times. See, e.g., § 777.04(4)(a), Fla. Stat. (providing that “the offense of criminal attempt . . . is ranked for purposes of sentencing under chapter 921 and determining incentive gain-time eligibility under chapter 944 one level below the ranking under s. 921.0022 or s. 921.0023 of the offense attempted, solicited, or conspired to” (emphasis supplied)); id. (4)(b) (“[I]f the offense attempted . . . is a capital felony . . . the offense of criminal attempt . . . is a felony of the first degree.” (emphasis supplied)); id. (4)(c), (d), (e) (continuing to distinguish between the “offense attempted” and the “offense of criminal attempt” and defining criminal attempt as “a felony” of some degree or “a misdemeanor” of some degree (depending on the classification of “the offense attempted”) all “punishable as provided in” sections 775.082, 775.083, or 775.084).

Subsection (5) provides for several unique defenses to the “charge of criminal attempt.” Id. (5).

The Legislature meanwhile has filled the criminal statutes with examples that demonstrate it knows how to specify when it wants an attempt to be an offense in violation of a provision other than section 777.04. A prime example of this is the sexual battery statute itself, which in a couple spots (as we already noted) criminalizes both sexual battery and an attempt that results in injury to the sex organs. See § 794.011(2)(a), (b), Fla. Stat. There are many other examples.⁷ Under these statutes, “a conviction for the principal substantive offense may be obtained based on a finding that the defendant attempted to commit the crime.” Carruthers v. State, 636 So. 2d 853, 855 (Fla. 1st DCA 1994).

No reasonable reading of the text of section 777.04 could give rise to a conclusion that “criminal attempt” is an offense prohibited by some other statute, “as modified” by section 777.04, rather than a separate offense with its own specified punishment. This approach, as used in Wilcox—equating the offense of attempt with the offense of sexual battery being attempted—also is out of step with the traditional view of the nature of criminal attempt. The criminalization of a general “attempt” is the criminalization of intent rather than any particular action or result. See Bunch v. State, 50 So. 534, 535 (Fla. 1909) (equating an

§ 560.111(2), Fla. Stat. (stating that a person “may not knowingly execute, or attempt to execute,” a scheme or artifice to defraud a money services business”); § 775.087(1), (2)(d), (3)(d), Fla. Stat. (providing for felony reclassification and enhanced sentencing for someone who “carries, displays, uses, threatens to use, or attempts to use any weapon or firearm” during the commission of a felony); § 775.33(2)(c), (3), Fla. Stat. (stating that someone who “attempts” to “provide material support or resources” in connection with terrorist activity commits a first-degree felony); § 784.0495(1), Fla. Stat. (making it unlawful to “attempt to compel or induce [] another person to do or refrain from doing any act or to assume, abandon, or maintain a particular viewpoint against his or her will”); § 784.085(1), Fla. Stat. (making it unlawful “to knowingly cause or attempt to cause a child to come into contact with” various offensive materials); § 787.025, Fla. Stat. (providing that an adult who “intentionally lures or entices, or attempts to lure or entice” a child “into a structure, dwelling, or conveyance for other than a lawful purpose” commits a crime); § 790.161, Fla. Stat. (providing that someone commits a felony if he or she “attempts to make, possess, throw, project, place, or discharge any destructive device”); see also Carruthers v. State, 636 So. 2d 853, 855 (Fla. 1st DCA 1994) (“Where the Legislature intended for the endeavor or attempt to commit a crime to be included as a violation of the substantive offense, it has so stated.” (citing several more examples)).

“attempt” to commit a crime with the “intent” to commit it).

No crime can be committed by bad thoughts alone.¹ W. LAFAVE, SUBSTANTIVE CRIMINAL LAW §§ 6.1, 6.1(b), at 422–24 (2d ed. 2003)).

Bad intent still may be criminalized, but only if the bad thoughts produce some act. Id. For this reason, to prove criminal attempt in Florida, there must be evidence of an “intent to commit a crime, coupled with an overt act apparently adapted to effect that intent, carried beyond mere preparation, but falling short of execution of the ultimate design.” Gustine v. State, 97 So. 207, 208 (Fla. 1923); see also Gentry v. State, 437 So. 2d 1097, 1098 (Fla. 1983) (noting “our commonly-accepted definition of attempt: a specific intent to commit the crime and an overt act, beyond mere preparation, done towards the commission”); Littles v. State, 384 So. 2d 744, 744 (Fla. 1st DCA 1980) (“An attempt consists of a specific intent to commit the crime, and a separate overt, ineffectual act done towards its commission.”); but cf. Gentry, 437 So. 2d at 1098–99 (holding “that there are offenses that may be successfully prosecuted as an attempt without proof of a specific intent to commit the relevant completed offense”).

The generalized offense of criminal attempt, then, addresses a public peril different from that addressed by a statute defining a specific, substantive offense. For many general intent criminal statutes, if a perpetrator intentionally completes all the acts and brings about the result as specified by statute to constitute a complete crime, he has violated that statute, even if it was not his specific intent to commit the offense defined. The completion of the crime authorizes imposition of the punishment tied to the offense. The peril addressed by the offense statute is the public harm that flows from the criminalized conduct. By contrast, a general “criminal attempt” statute like we have here addresses a separate public peril, one that flows from someone having the intent to commit a crime, even if he does not complete the offense and cause injury to another or to the public. Common sense tells us that a perpetrator’s failure to complete the crime defined means that he has not violated the statute defining it, the offense remains inchoate, and punishment for that offense is not authorized. The Legislature, however, should not have to wait for the perpetrator to try again with success (and have the offense become choate) before he can be subject to public correction. After all, the public peril remains, even if the perpetrator has not succeeded in causing the public harm addressed by an underlying offense. In turn, the Legislature enacted section 777.04 to punish that criminal intent once it manifests itself as action. Under this statute, punishment is authorized for that criminal intent as a separate offense, even if the intent did not result in a completed substantive offense. The Legislature also opted, per its prerogative, to tie the severity of the punishment for the intent to the severity of the punishment it set for the underlying offense. This no doubt is so because there is greater public peril posed either by an intent to commit a more serious crime or by a generalized criminal intent that manifests itself as action toward commission of a more serious crime.⁸

Comportment with these constitutional notice and jury trial requirements does not, however, equate with treatment of a violation of the criminal attempt statute with violation of the underlying, uncompleted offense.

Returning to the question at hand, we can say without a doubt that when the Legislature states in section 944.275(4)(e) that incentive gain-time may not be given on a sentence imposed on an offense that “is a violation of” section 794.011, it means a sentence imposed for the completed offense defined in that provision.⁹ Section 777.04 does not modify any criminal offense statutes. It is a standalone crime with its own punishment scheme, and a violation of the statute does not constitute a violation of any other criminal statutes. Gould was convicted of criminal attempt, as it is defined in section 777.04, and not sexual battery, as it is defined in section 794.011.

Consequently, section 944.275(4)(e) does not render Gould ineligible for incentive-gain-time consideration, and he is entitled to that discretionary consideration by the department.

C. We drop a post-script here before we close to address Judge Bilbrey’s assertion that our analysis conflicts with the supreme court’s decisions in Coicou v. State, 39 So. 3d 237 (Fla. 2010), and Weatherspoon v. State, 214 So. 3d 578 (Fla. 2017).

We explain why these decisions do not impel a different result in this appeal. We also want to clarify that this court’s decision in Hurst v. State, 257 So. 3d 1202 (Fla. 1st DCA 2018), contrary to Judge Bilbrey’s suggestion, remains intact and untouched by our disposition here. Let us first take Coicou. The certified question that the supreme court answered was as follows: “MAY AN APPELLATE COURT DIRECT THE ENTRY OF A CONVICTION FOR ATTEMPTED SECOND-DEGREE MURDER WHERE THE JURY’S VERDICT DOES NOT REFLECT A FINDING THAT THE DEFENDANT ACTED WITH A DEPRAVED MIND?” Coicou, 39 So. 3d at 238. The question before the court was “whether the jury’s verdict of guilty on the charge of attempted

first-degree felony murder provided an adequate basis for directing—pursuant to section 924.34—the entry of a conviction for attempted second-degree murder.” Id. at 240.

It was looking at elements in the context of lesser-included offenses, not the statutory text we are looking at here. To do that, the court had to compare the elements of a criminal attempt specifically defined by statute, attempted felony murder (i.e., “codified in section 782.051, Florida Statutes”), with those for the generalized offense of criminal attempt with reference to the incomplete offense of second-degree murder (i.e., “codified in section 777.04(1), Florida Statutes (2001), defining attempt, and section 782.04(2), Florida Statutes (2001), defining second-degree murder”).

Id. at 240–41; cf. Fla. Std. Jury Instr. (Crim.) 6.3. The supreme court’s characterization of general criminal attempt is unremarkable and consistent with how we have explained it: One needs to look to both the attempt statute and the underlying offense statute to know what the elements are. As we mentioned above, because the severity of punishment for the criminal attempt charged turns on the underlying offense attempted, due-process and jury-trial constitutional guarantees require that the underlying offense that was attempted be specifically charged and proven to the jury beyond a reasonable doubt. In other words, the jury must determine whether the defendant did “any act toward the commission of” the specified offense to authorize a punishment for the attempt based on the punishment specified for the underlying offense. This is much different than saying an attempt is actually a violation of the underlying statute “as modified” by the attempt statute, which the supreme court in Coicou had no need to address. Next is Weatherspoon. In that case, the supreme court once again was dealing with the separately enumerated offense of attempted felony murder. The court held as follows: Because the statutory crime of attempted felony murder is a crime separate from attempted premeditated murder with different elements and different punishments, the State must charge the crime of attempted felony murder in order to be entitled to a jury instruction on that crime and proceed under that theory.

Weatherspoon, 214 So. 3d at 580. Like in Coicou, the supreme court was addressing offense elements, not the statutory text at issue in this appeal. And like in Coicou, to make this elements comparison, the supreme court noted that “[t]he crime of attempted premeditated murder is codified in section 782.04 (Murder), and section 777.04 (Attempts, solicitation, and conspiracy), while the crime of attempted felony murder is now codified in section 782.051 (Attempted felony murder).” Weatherspoon, 214 So. 3d at 586. Once again, a passing statement like this is unremarkable. To know the elements of the offenses of criminal attempt, there must be a reference to both the attempt statute and the underlying offense that the perpetrator had the intent to commit. This reference, however, does not mean that a conviction for the attempt equates with conviction of the underlying offense. Weatherspoon does not hold otherwise.

Finally, there is Hurst. This court was considering an entirely different statute in that case, but in any event, it is consistent with our analysis. The decision addresses the interplay of two sentencing statutes that together determine what interval of review to give a juvenile sentenced under certain circumstances. See §§ 775.082, 921.1402, Fla. Stat. The juvenile had been convicted of attempted premeditated murder with a firearm and sentenced to life in prison.

The trial court determined he was entitled to a sentence review after he had served twenty-five years, because he had been convicted “under s. 782.04 of an offense that was reclassified as a life felony,” committed while he was a juvenile. § 775.082(3)(a)5.a., Fla. Stat.

The court rejected the defendant’s argument that his attempted murder conviction was not an offense under section 782.04, so his review interval should have been shorter. In doing so, the court explained—in a manner redolent of the analysis in Coicou and Weatherspoon—that “a person cannot be convicted of the offense of attempt without necessarily proving the elements of some underlying, substantive offense.” Hurst, 257 So. 3d at 1204. That is true, of course, and we have said the same thing here. Context matters, though, and the Hurst court made this observation as part of its interpretation of a different statute with different language. That statute in Hurst references someone “convicted under s. 782.04.” “Under” as a preposition in this provision means “with reference to” or “subject to.” In this context, then, it is accurate to say that the statute’s applicability requires a reference to the specified provision, even if the provision itself does not define the actual offense committed. Indeed, Hurst implicitly acknowledges the difference: “This specific language referring to attempt is repeated throughout the statute and applies whether the underlying conviction is for a capital felony, a life felony, or a first-degree felony.” Id. at 1204.

Most importantly, in Hurst this court did not say that the attempted murder conviction was a violation of section 782.04 “as modified” by the attempt statute. The court held that the particular provision it was considering included attempted murder because of the statute’s repeated references to “attempt.” See § 775.082(3)(a)5.a.–b., Fla. Stat.; see also id. 6.a.–b. The language we deal with in this case requires a “violation of” the statute specified, meaning that all the acts and results defined by the statute must be proven. That is a stricter definition than for a conviction “under” a particular provision, which requires only a reference to it, even if all the elements are not proven.¹⁰ IV. Gould has a clear right to consideration for the award of incentive gain-time. There is no statutory preclusion. The department in turn is required to exercise its discretion on that question. Because it refused, the trial court did not err when it granted Gould’s request for a writ of mandamus. AFFIRMED.

ROWE, C.J., and B.L. THOMAS, ROBERTS, RAY, OSTERHAUS, WINOKUR, JAY, M.K. THOMAS, NORDBY, and LONG, JJ., concur. LEWIS, J., concurs in result only.

MAKAR, J., dissents with opinion in which BILBREY and KELSEY, JJ., join.

BILBREY, J., dissents with opinion in which MAKAR and KELSEY, JJ., join. _____________________________