RICKY D. DIXON, SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS

v.

FRANCHOT BROWN

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

No. 1D2025-1237

RICKY D. DIXON, Secretary, Florida Department of Corrections,

Appellant,

v. FRANCHOT BROWN,

Appellee.

On appeal from the Circuit Court for Leon County. Jonathan Sjostrom, Judge.

November 5, 2025

WINOKUR, J.

Ricky D. Dixon, Secretary, Florida Department of Corrections (“the Department”), appeals an order granting a petition for writ of mandamus filed by Franchot Brown. In his petition, Brown claimed that the Department violated the Ex Post Facto Clause when it changed its interpretation of a statute and removed previously awarded gain time.

The trial court agreed with Brown and directed the Department to award Brown incentive gain time “consistent with its pre-2016 interpretation” of section 944.275, Florida Statutes. For the reasons set forth below, we affirm the trial court’s decision.

As framed by the parties, this case presents the following question: is section 944.275(4), as it read in 1994, ambiguous? More specifically, does a reasonable interpretation of paragraphs (4)(b) and (4)(c) of that version of the statute support two different outcomes regarding the availability of incentive gain time? See Hess v. Walton, 898 So. 2d 1046, 1049 (Fla. 2d DCA 2005) (“A statute is normally regarded as ‘ambiguous’ when its language may permit two or more outcomes.” (citation omitted)); see also Nicarry v. Eslinger, 990 So. 2d 661, 664 (Fla. 5th DCA 2008) (“A statute is ‘ambiguous’ when its language is subject to more than one reasonable interpretation and may permit more than one outcome.” (citing Hess, 898 So. 2d at 1049)).

If these provisions create ambiguity and the Department’s original interpretation of the statute was reasonable, then Brown prevails.¹ Wainwright, 759 F. 2d 856 (11th Cir. 1985) (holding that, if a statute is ambiguous and an agency’s original interpretation of the statute was reasonable, then a retrospective change in the agency’s interpretation may violate the Ex Post Facto Clause).

But if the proper interpretation of these provisions is unambiguous, and the Department’s original interpretation of the statute was erroneous, then the Department prevails. See Metheny v. Hammonds, 216 F. 3d 1307 (11th Cir. 2000) (holding that, if a statute is unambiguous and an agency’s original interpretation of the statute was erroneous, then the agency may correct its interpretation without running afoul of the Ex Post Facto Clause); see also Lerner v. Gill, 751 F. 2d 450, 457 (1st Cir. 1985) (“[T]he ex post facto clause does not give a prisoner a vested right to a

1 The Department does not contest whether its original interpretation of the statute was reasonable. Instead, the Department relies on Metheny v. Hammonds, 216 F. 3d 1307 (11th Cir. 2000) to argue that, if the original interpretation was erroneous, then reasonableness is irrelevant. See Metheny, 216 F. 2d at 1310.

Thus, the inquiry here requires us to determine whether the apparent conflict in the provisions created an ambiguity that the Department originally interpreted in a reasonable manner, which has ex post facto consequences. Knuck and Metheny both make this clear, and both parties acknowledge that these cases control our analysis.

II

Brown committed first-degree murder of Raphael Santana on August 27, 1994. His entitlement to incentive gain time was governed by section 944.275(4), Florida Statutes (1993).

But a full understanding of the effect of this provision requires us to consider the applicable provisions of section 944.275 both before and after the date Brown murdered Santana, as well as administrative rules and Supreme Court cases concerning life sentences and gain time eligibility for life sentences.

In 1983, the Legislature rewrote section 944.275, establishing “basic gain-time” (paragraph (4)(a)) and “incentive gain-time” (paragraph (4)(b)).

Ch. 83-131, § 8, Laws of Fla.; see also § 944.275(4)(a), (4)(b), Fla. Stat. (1983).2

Paragraph (4)(b) of the 1983 version read as follows: “For each month in which a prisoner works diligently, participates in training, uses time constructively, or otherwise engages in positive activities, the department may grant up to 20 days of incentive gain-time, which shall be credited and applied monthly.”

Subsection (4) remained substantially unchanged until 1993. Then, as part of an overhaul of the Sentencing Guidelines that included the placement of all felonies (except capital felonies) into

2 We do not address Brown’s entitlement to basic gain time under subparagraph (4)(a) of section 944.275, Florida Statutes.

(c) For each month in which a prisoner works diligently, participates in training, uses time constructively, or otherwise engages in positive activities, the departments may grant incentive gain-time in accordance with this paragraph. For sentences imposed for offenses committed on or after January¹, 1994, for offenses which are, were, or would have been ranked on the offense severity chart in s. 921.0012 in:

1. Levels 1 through 7, up to 25 days of incentive gain-

time, which shall be credited and applied monthly.

2. Levels 8, 9, and 10, up to 20 days of incentive gain-

time, which shall be credited and applied monthly.

Ch. 93-406, § 26, Laws of Fla.; see also § 944.275(4)(c), Fla. Stat. (1993).

Note that on August 27, 1994, the date Brown murdered Santana, both paragraphs (4)(b) and (4)(c) were in effect. Because both paragraphs concern incentive gain time but each provide different methods of calculating incentive gain time, it could be uncertain how such gain time was to be calculated. Whether these paragraphs created uncertainty is a central issue in this case.

Perhaps this uncertainty provoked another rewrite of the incentive gain time provisions in 1995. After these 1995 amendments, the gain-time provision read as follows:

(b) For each month in which an inmate works diligently, participates in training, uses time constructively, or otherwise engages in positive activities, the department may grant incentive gain-time in accordance with this paragraph. The rate of incentive gain-time in effect on the date the inmate committed the offense which resulted in his or her incarceration shall be the inmate's rate of eligibility to earn incentive gain-time throughout the period of incarceration and shall not be altered by a subsequent change in the severity level of the offense for which the inmate was sentenced.

5

1. For sentences imposed for offenses committed prior to January¹, 1994, up to 20 days of incentive gaintime may be granted. If granted, such gain-time shall be credited and applied monthly.

2. For sentences imposed for offenses committed on or after January¹, 1994, and before October¹, 1995:

a. For offenses ranked in offense severity levels 1 through 7, under s. 921.0012 or s. 921.0013, up to 25 days of incentive gain-time may be granted. If granted, such gain-time shall be credited and applied monthly.

b. For offenses ranked in offense severity levels⁸, 9, and¹⁰, under s. 921.0012 or s. 921.0013, up to 20 days of incentive gain-time may be granted. If granted, such gain-time shall be credited and applied monthly.

3. For sentences imposed for offenses committed on or after October¹, 1995, the department may grant up to¹⁰ days per month of incentive gain-time . . . . State prisoners sentenced to life imprisonment shall be incarcerated for the rest of their natural lives, unless granted pardon or clemency.

§ 944.275(4), Fla. Stat. (1995). See also ch. 95-184, § 26, Laws of Fla.; Ch. 95-294, § 2, Laws of Fla.

In summary, the 1995 amendments¹) combined former paragraphs (4)(b) and (4)(c);²) stated that former paragraph (4)(b) applies only to offenses committed before January¹, 1994; 3) specified that former paragraph (4)(c) applies to offenses committed between January¹, 1994 and October¹, 1995; 4) added a new incentive gain time provision for offenses committed after October¹, 1995; and 5) explicitly disqualified life sentences from gain time, unless clemency was granted.

At the time Brown murdered Santana, the Department had an administrative rule regarding gain time for inmates with lifeor-death sentences:

6

Death or Life sentences cannot be reduced by gain-time.

However, any inmate serving a death or life sentence will be considered for incentive gain-time and the gain-time will be posted so that in the event the life or death sentence is commuted to a number of years, the accumulated incentive gain-time will be applied to the inmate’s sentence.

Fla. Admin. Code R. 33-11.0065(5)(c) (1994).

Note that the rule permits accumulated incentive gain time to be “applied,” not when the inmate is resentenced to a term of years, but when the sentence is commuted to a term of years. A commutation is a specific act where Governor and Cabinet reduce a sentence to a less severe punishment and is not a judicial resentencing. See Art. 4, § 8, Fla. Const. (authorizing the governor, “with the approval of two members of the cabinet,” to “commute punishment”); Stone v. Burch, 154 So. 128, 129 (Fla. 1934) (“A commutation is the change of punishment to which a person has been condemned to a less severe one, or the substitution of a less for a greater penalty or punishment.”).

This limitation makes sense because, as discussed below, until recently commutation was the only way possible to have a term-of-years sentence for a capital felony.

The Department’s rule affected all persons convicted of firstdegree murder. At the time Brown murdered Santana, the only authorized penalties for first-degree murder were death or life imprisonment with no eligibility for parole. §§ 775.082(1)(a) (Supp. 1994), 782.04, Fla. Stat. This requirement was altered in 2005, when the Supreme Court of the United States ruled that a death sentence imposed upon an offender who was a juvenile at the time of the offense violated the Eighth Amendment. Roper v. Simmons, 543 U.S. 551 (2005).

It was altered further in 2012, when the Supreme Court held that “the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile homicide offenders.” Miller v. Alabama, 567 U.S. 460 (2012).

As a result of Miller, and the consequent 2014 amendments

III

Brown falls within a very small class of inmates who meet the following criteria:¹) they committed first-degree murder when they were under 18 years old;²) the murder occurred on or after January¹, 1994, but before October¹, 1995; 3) as a result of their convictions, they received a death or mandatory life sentence; and⁴) they were later resentenced to a term of years, without any alteration to the offense of conviction.

The Department explained Brown’s gain time calculation as follows: while he was serving his sentence, he earned incentive gain time, which the Department “posted” to his life sentence, even though it could not apply any gain time to calculate a release date. The Department did so in the event that Brown was resentenced from his gain-time ineligible life sentence to a gain-time eligible term-of-years sentence. In other words, Brown earned gain time, but it was only “posted on the books” in the event of resentencing to a term of years. This explanation is generally consistent with the Department’s administrative rule, except that it did not appear to limit the prospect of a term-of-years sentence to a commutation.

When Brown was resentenced to a term of years pursuant to the 2014 juvenile sentencing law, the Department applied accumulated incentive gain time to his sentence and calculated a release date accordingly.

However, after concluding it erroneously awarded incentive gain time to Brown in 2016, the Department removed that gain time and recalculated Brown’s release date.

After exhausting the administrative process, Brown filed a petition for writ of mandamus seeking restoration of the removed gain time. Relying on the Eleventh Circuit’s decision in Knuck, Brown argued that the Department violated the Ex Post Facto Clause of the United States Constitution when it changed its interpretation of the 1994 version of section 944.275 and removed

In response, the Department relied on the Eleventh Circuit’s decision in Metheny, arguing that its correction of an erroneous award of gain time did not violate the Ex Post Facto Clause because section 944.275 clearly and unambiguously prohibited the Department from awarding gain time to capital offenders like Brown. See Metheny, 216 F. 3d at 1310 (“A new regulation which just corrects an erroneous interpretation (even if the error was a reasonable one) by an agency of a clear pre-existing statute does not violate the Ex Post Facto Clause.” (emphasis supplied)).

The Department argued that Brown’s reliance on Knuck was misplaced as that decision hinged on a finding that the underlying statute was ambiguous. See Metheny, 216 F. 3d at 1311 n.11 (“Knuck is materially different: it concerned an interpretation of an ambiguous statutory provision made under interpretive authority expressly delegated to the agency, which is not the case here.”).

According to the Department, because the 1993 version of section 944.275(4)(c) applied only to Level¹ through Level¹⁰ offenses—and not to capital felonies—Brown was never eligible to receive incentive gain time at all. See § 921.001(4)(b)2., Fla. Stat. (1993) (noting that the sentencing guidelines, as amended, did not apply to capital felonies committed on or after January¹, 1994); § 944.275(4)(c), Fla. Stat. (1993) (limiting incentive gain time to inmates who committed an offense that qualifies as a Level¹ through¹⁰ offense under the 1994 guidelines).

Thus, the Department argued that Brown “had no right to the credits in the first place as a matter of law.” Therefore, the

3 Neither party addresses Article I, section¹⁰ of the Florida Constitution, which likewise prohibits the passage of an ex post facto law. Art. I, § 10, Fla. Const. 9 Department’s correction of its erroneous award of incentive gain time did not violate the Ex Post Facto Clause.

The trial court granted the petition and ordered the Department to restore the removed incentive gain time and recalculate Brown’s release date. The Department timely appealed.

IV

On appeal, the parties dispute which Eleventh Circuit decision applies to the facts of this case. According to Brown, Knuck applies; according to the Department, Metheny applies.

Knuck and Metheny provide a series of guiding questions for courts when analyzing Ex Post Facto claims like the one here. These guiding questions lead to three possible scenarios:

1.

The statute is ambiguous, and the agency’s original interpretation of the statute was reasonable.

2.

The statute is ambiguous, and the agency’s original interpretation of the statute was not reasonable.

3.

The statute is clear and unambiguous, and the agency’s original interpretation of the statute is therefore irrelevant.

Scenario #1: If the statute is ambiguous and the agency’s original interpretation of the statute is reasonable, then a change in interpretation that disadvantages the inmate can violate the Ex Post Facto Clause. This is what occurred in Knuck.

Scenario #2: If the statute is ambiguous and the agency’s original interpretation of the statute was not reasonable, then neither Knuck nor Metheny apply. This scenario appears to be the only one where we could apply the canons of statutory construction to determine the correct interpretation of an ambiguous statute. For the reason outlined below, we need not do so here.

If the statute is ambiguous because a reasonable interpretation would support either outcome, then it would seem difficult to argue that the Department’s original choice between those two outcomes was unreasonable. See Nicarry, 990 So. 2d at 664.

Scenario #3: If the statute is clear and unambiguous, then an agency change from an erroneous interpretation to the correct one has no Ex Post Facto implication. See Metheny, 216 F. 3d at 1310. Put another way, if the statute is clear and unambiguous, then the language of the statute is all that matters. See Metheny, 216 F. 3d at 1311 n.11.

Expressed in Ex Post Facto terms, an inmate has no vested right in the agency’s continued misinterpretation of a clear and unambiguous statute. See Mileham v. Simmons, 588 F. 2d 1279, 1280 (9th Cir. 1979) (“The Ex post facto clause of the Constitution does not give [a prisoner] a vested right in [the] erroneous interpretation [of a statute].”).

Therefore, the agency can correct its misinterpretation of that statute without running afoul of the Ex Post Facto Clause. See Stephens v. Thomas, 19 F. 3d 498, 500 (10th Cir. 1994) (“[The Ex Post Facto Clause] does not prohibit, however, the correction of a misapplied existing law which disadvantages one in reliance on its continued misapplication.” (citations omitted)); see also Caballery v. United States Parole Comm’n, 673 F. 2d 43, 47 (2d Cir. 1982) (“[A]n agency misinterpretation of a statute cannot support an ex post facto claim.”).

A

The Department raises several arguments supporting reversal.

First, the Department suggests that the decision in Loper Bright Enter. v. Raimondo, 603 U.S. 369 (2024) calls into question whether the reasonableness of an agency’s original interpretation of a statute still matters for Ex Post Facto purposes. The

Nor does Loper Bright address whether an administrative rule can implicate the Ex Post Facto Clause. We decline to do so here.⁴

In a footnote, the Department also argues that the Ex Post Facto Clause does not apply in this case because its “interpretation of Section 944.275 is an interpretive rule, not a legislative rule implicating the Ex Post Facto Clause.” We do not reach that question, however, because the Department failed to properly present the issue—mentioning it only in a footnote. See Brown v. State, 304 So. 3d 243, 277 n.16 (Fla. 2020) (declining to address an issue “based on assertions in a footnote”); Simkins Indus., Inc. v. Lexington Ins. Co., 714 So. 2d 1092, 1093 (Fla. 3d DCA 1998) (explaining that referencing a matter in a footnote “does not elevate the matter to a point on appeal”); Brooks v. State, 175 So. 3d 204, 233 (Fla. 2015), abrogated on other grounds by Cruz v. State, 372 So. 3d 1237 (Fla. 2023) (refusing to address a challenge “presented primarily in a footnote”).5

4 Nor do we address any argument based on Article V, section 21 of the Florida Constitution, addressing judicial deference to an administrative agency’s interpretation of a statute. See Art. V, § 21, Fla. Const. The Department makes a passing reference to that provision of the Florida Constitution but provides no analysis.

5 The dissent accepts the Department’s framing of this issue, focusing on whether the agency action in this case was “an exercise of delegated legislative authority to determine eligibility to [receive] gain time.” Again, the Department raised this issue only in a footnote, devoting its opinion primarily to the separate question of whether a proper reading of the statute excludes gain time for Brown. It would be improper for us to reverse the ruling below when the Department did not properly raise it in this appeal. Even if we were to consider this specific matter, we note that this case involves incentive gain time under paragraphs (4)(b) and (4)(c)—not basic gain time under paragraph (4)(a).

The latter is

Before discussing the Department’s next argument, we must compare it to its argument made below. There, the Department raised the following two arguments in the alternative:

• Brown is ineligible for gain time because the statutory provision in effect on his date of offense does not authorize gain time for capital offenses.

• Rule 33-11.0065(5)(c) does not apply to Brown because the rule addresses reduction of sentence to a term of years as a result of commutation, not as a result of resentencing by a court.

These two arguments were presented in the alternative because they are inconsistent. If, as the first argument suggests, capital felons are ineligible for gain time, then the rule is invalid inasmuch as it allows capital felons (who received death or life sentences) to receive gain time, as long as their sentences are commuted.

On appeal, the Department chooses to present the first argument—that paragraph (4)(c) of the 1993 version of section 944.275 clearly and unambiguously prohibits the Department from awarding incentive gain time to Brown, and that paragraph (4)(b) clearly and unambiguously does not provide any separate right to incentive gain time for Brown—rather than the second,

automatic. See § 944.275(4)(a), Fla. Stat. (1993) (“As a means of encouraging satisfactory behavior, the department shall grant basic gain-time at [a specified] rate[.]” (emphasis supplied)).

In contrast, incentive gain time is discretionary. See § 944.275(4)(b), (4)(c), Fla. Stat. (1993) (both reading, “[f]or each month in which a prisoner works diligently, participates in training, uses time constructively, or otherwise engages in positive activities, the department may [award gain time]” (emphasis supplied)).

Because the Department failed to present properly an argument that the rule is interpretive rather than legislative, we do not address whether the Legislature’s delegation of rule-making authority under section 944.09, Florida Statutes, authorized the Department to implement rules for discretionary awards of incentive gain time, even if it may not for basic gain time.

Accordingly, we do not consider the second argument because it contradicts the Department’s argument here.

To support its argument that section 944.275 clearly and unambiguously prohibits Brown from receiving incentive gain time, the Department relies on several canons of statutory construction. For instance, the Department relies on the canons of verba cum effectu sunt accipienda, to argue that a broad reading of paragraph (4)(b) would render subparagraph (4)(c)2. superfluous; the absurdity doctrine, to argue that a broad reading of subsection (4) may lead to the assessment of 40 days gain time per month; expressio unis est exclusio alterius, to argue that because subparagraph (4)(c)2. does not include capital offenses, those offenses are necessarily excluded from both subparagraph (4)(c) and subparagraph (4)(b); and generalia specialibus non derogant to argue that the more specific language of paragraph (4)(c) controls over the more general language in paragraph (4)(b).

The Department’s statutory interpretation argument boils down to a claim that paragraphs (4)(b) and (4)(c) should be interpreted in a way that renders them compatible, not contradictory. According to the Department, the two paragraphs can be interpreted in a compatible way if paragraph (4)(b) applies to offenses committed prior to January¹, 1994, and paragraph (4)(c) applies to offenses committed on or after January¹, 1994. To support this argument, the Department points to the 1995 amendments to section 944.275. Specifically, the Department argues that the 1995 version of subparagraph (4)(b)2. shows that, in 1993, the Legislature intended for the 1993 version of paragraph (4)(c) to apply exclusively to all offenses committed on or after January¹, 1994.

The Department acknowledged that any retrospective application of the 1995 amendments to Brown’s detriment would violate the Ex Post Facto Clause.

Nevertheless, the Department argues that the 1995 amendment shows the 1993 Legislature’s intent with regard to section 944.275(4)(b) and (4)(c). In other words, the Department argues that the 1995 amendment is important for clarification purposes only—not for any substantive effect on Brown’s incentive gain-time eligibility.

The Department acknowledges that “the application of three distinct, non-overlapping gain-time statutes was becoming confusing.” Nevertheless, the Department asserts in a footnote that “[m]aking absolutely clear to whom the 1983 statute applied did not somehow render the previous version of the statute ambiguous.” It appears that the argument is that the 1993 amendments were clear, but the 1995 amendments were “absolutely clear.”

Either way, we reject the premise that the 1995 Legislature can conclusively establish what the 1993 Legislature meant when it passed the 1993 amendments. See State v. Crose, 378 So. 3d 1217, 1241 (Fla. 2d DCA 2024) (noting that “a post hoc, extratextual source such as a subsequent amendment to a criminal statute, can no longer be a viable tool to derive textual meaning.”).

C

For his part, Brown argues that the 1994 version of section 944.275 is ambiguous. According to Brown, the Department’s original interpretation of paragraphs (4)(b) and (4)(c) was reasonable: inmates who commit a capital offense are eligible to earn up to 20 days of incentive gain time every month under (4)(b); and, that gain time is applied to a life sentence in the event that sentence is converted to a term-of-years sentence.

Therefore, under Knuck, the Department violated the Ex Post Facto Clause when it changed its original interpretation and removed incentive gain time that Brown previously earned.

A

We find that the 1994 version of section 944.275 is ambiguous because a reasonable interpretation of the statute supports two possible outcomes. See Hess, 898 So. 2d at 1049. On the one hand, Brown is ineligible for incentive gain time under paragraph (4)(c) because he committed a capital offense; on the other, subparagraph (4)(b) suggests that all inmates are eligible for incentive gain time, regardless of offense level.

Therefore, the statute is ambiguous. See Nicarry, 990 So. 2d 661 at 664.

Having found the statute ambiguous, we also find that the Department’s contemporaneous interpretation of that statute was reasonable, that is, an inmate who committed a capital offense can receive incentive gain time under paragraph (4)(b) even if he cannot receive that gain time under paragraph (4)(c).

See Colbert v. Department of Health, 890 So. 2d 1165, 1166 (Fla. 1st DCA 2004) (“[An agency’s interpretation of law] will be upheld if the agency's construction falls within the permissible range of interpretations.” (citing Natelson v. Department of Ins., 454 So. 2d 31, 32 (Fla. 1st DCA 1984))).

Applying Knuck, we conclude that the Department violated the Ex Post Facto Clause when it changed its interpretation of the statute and removed gain time earned by Brown. See Knuck, 759 F. 2d at 859 (“In this case, Knuck had over¹⁰ years notice through the established practice and regulations of the D.O.C. that he would be awarded lump sum gain time. We therefore affirm the district court's holding that the recalculation of Knuck’s gain time violated the ex post facto clause.”).

We acknowledge that the Department presented reasonable arguments regarding the correct interpretation of section 944.275. But we do not reach them here. Under Knuck and Metheny, we are not tasked with determining the correct interpretation of an ambiguous statute. Once we found the 1994 version of the statute ambiguous, Metheny no longer applies. At that point, our task is to determine whether the Department’s original interpretation was

B

The dissent correctly notes that the Florida Supreme Court has moved away from the strict two-part analysis for statutory interpretation that requires us to, first, determine whether a statute is ambiguous, and second, if ambiguous then to apply canons of construction to determine correct meaning. See, e.g., Koile v. State, 934 So. 2d 1226, 1233 (Fla. 2006) (noting that courts resort to rules of statutory construction only “if the statute is ambiguous on its face”).

Instead, the Court has emphasized that canons of construction “aren’t necessarily triggered by ambiguity, but by the need to understand a text[]” so that “we don’t wait until we are confused to consider” history and context. DeSantis v. Dream Defs., 389 So. 3d 413, 425 n.12 (Fla. 2024).

We do not dispute our supreme court’s observation. But this observation applies to a different matter than the one presented here. Our goal is not to determine correct meaning in the same manner as the typical statutory interpretation issue. Rather, we are attempting to determine whether an agency interpretation of a statute has ex post facto effect. And this analysis turns on whether the statute is ambiguous, or, more accurately, whether the statute is susceptible to different outcomes. Knuck and Metheny both used this approach. In short, the fact of ambiguity matters to the ex post facto analysis in a way that it does not in typical statutory interpretation.

VI

We conclude that the 1994 version of section 944.275 is ambiguous. We also conclude that the Department’s original interpretation of that statute was reasonable.

Furthermore, we conclude that, under Knuck, the Department violated the Ex Post Facto Clause of the United States Constitution when it removed incentive gain time previously earned by Brown.

Accordingly, we affirm the order granting petition for writ of mandamus.

17

AFFIRMED.

OSTERHAUS, C.J., concurs with opinion; LONG, J., dissents with opinion.