EDGAR SEARCY, APPELLANT,
v.
HARRY K. SINGLETARY, JR., SECRETARY, DEPARTMENT OF CORRECTIONS, APPELLEE
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Edgar Searcy, an inmate convicted of sexual offenses, challenged the Department of Corrections' denial of provisional credits (gain time) under Florida law. The court reversed the lower court's decision, finding that the circuit court applied an outdated version of the statute and that the 1990 amendment may have narrowed the categorical bar to his eligibility.
The court reversed the summary denial of Searcy's petition, holding that the circuit court erred by applying the pre-1990 version of the statute. The court found that the 1990 amendment narrowed the blanket proscription against awarding provisional credits to persons convicted of lewd assault, and that the legislature intended to grant retroactive relief to at least some inmates previously excluded. The matter was remanded to allow the Department of Corrections to determine whether Searcy's specific offense falls within the reworded exclusions.
[1] A court errs by summarily denying a petition for writ of mandamus or habeas corpus based on an incorrect version of a statute.
[2] Amendments to Florida Statute § 944.277 narrowed the scope of offenses that preclude eligibility for provisional credits.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“a onetime blanket proscription against awarding provisional credits to persons convicted of lewd assault now has been narrowed to some extent by this rewording”
Establishes that the 1990 amendment to the statute narrowed the categorical exclusion rather than maintaining a blanket prohibition
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Join FLexlaw to unlock all legal intelligenceSearcy is serving a sentence for sexual activity with a child and lewd assault upon a child under age 16. The Department of Corrections denied him pro…
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PER CURIAM.
Edgar Searcy appeals the denial of his petition for writ of mandamus and/or habe-as corpus.1 We reverse.
Searcy is serving a sentence for sexual activity with a child and lewd assault upon a child under age 16.2 His petition alleges that the Department of Corrections, relying upon section 944.277(1), Florida Statutes (1990 Supp.), refuses to award him “provisional credits,” notwithstanding the fact none of the exceptions contained within that statute properly apply to him.
The circuit court’s order indicates that Searcy is excluded from eligibility for provisional credits by virtue of subsection 944.-277(l)(c) of the statute, which the court found bars all persons “convicted or ... previously convicted of committing ... a lewd or indecent assault Or act.” While this language clearly would exclude Searcy from consideration, the language is taken from the statute as it existed prior to 1990. In 1990 the legislature amended subsection (c) to exclude persons:
[C]onvicted ... or previously convicted of committing, or attempting to commit sexual battery, incest, or any of the following lewd or indecent assaults or acts: masturbating in public; exposing the sexual organs in a perverted manner; or nonconsensual handling or fondling of the sexual organs of another person ...
Ch. 90-186, Laws of Fla. It would appear that a onetime blanket proscription against awarding provisional credits to persons convicted of lewd assault now has been narrowed to some extent by this rewording.3
We further find that the legislature intended to grant retroactive relief to at least some inmates previously excluded from consideration under section 944.277. Although section 4 of Ch. 90-186 provides that the amended statute shall apply “to offenses committed on or after October 1, 1990,”4 section 3 of the same enactment provides that “[a] person who is convicted ... of committing prior to the effective date of this act a lewd or indecent assault specified in section 944.277(l)(c) ... is eligible for provisional credits” except as specifically described in the reworded subsection (emphasis added).
In its responsive pleadings in this court the Department of Corrections asserts that “Searcy’s offense has been determined to be an excludable offense both before and after the 1990 amendment.” However, we cannot determine from the record before us whether this is so. We hold only that summary denial of Searcy’s petition, based on an application of the incorrect version of the appropriate statute, was error. Our decision is without prejudice to the Department to establish, after remand, that Sear-cy is ineligible for provisional credits. See, e.g., Dugger v. Grant, 587 So. 2d 608 (Fla. 1st DCA 1991).
Reversed.
SCHOONOVER, C.J., and SCHEB and HALL, JJ., concur. .Mandamus in the circuit court where the prisoner is housed is the proper remedy to compel the award of gain time. Hall v. Wainwright, 498 So. 2d 670 (Fla. 1st DCA 1986). However, Searcy also alleges that his sentence would have expired had gain time been properly awarded, so his resort to habeas corpus also would be proper. Diggs v. Department of Corrections, 503 So. 2d 412 (Fla. 1st DCA 1987).
. Violations of §§ 794.041(2)(b) and 800.04(1), Fla.Stat. (1987), respectively.
. Section 944.277 contains a number of other exceptions, such as minimum mandatory sentences. Searcy asserts that none of the remaining exceptions apply, and all pleadings before this court are confined to discussions of subsection 944.277(l)(c).
. Searcy’s offenses stem from 1988 or earlier.
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Burgess v. Crosby, 870 So. 2d 217 (Fla. 1st DCA 2004)…tated, 657 So. 2d 67 (Fla. 1st DCA), cert. denied, 516 U.S. 996, 116 S.Ct. 533, 133 L.Ed.2d 438 (1995). If an inmate is not making a claim to the right to immediate release, a petition for writ of mandamus is the proper remedy. Searcy v. Singletary, 590 So. 2d 1034 n. 1 (Fla. 2d DCA 1991), receded from on other grounds, Stovall v. Cooper, 860 So. 2d 5 (Fla. 2d DCA 2003); see Turner v. Singletary, 623 So. 2d 537, 538 (Fla. 1st DCA 1993)(holding that in certain instances, a petition for writ of mandamus may be t…
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Stovall v. Sergeant William Cooper, 860 So. 2d 5 (Fla. 2d DCA 2003)…way of a petition for an extraordinary writ. Hall v. Wainwright, 498 So. 2d 670 (Fla. 1st DCA 1986). If a prisoner’s sentence would have expired had the Department properly awarded gain time, habeas corpus is the proper remedy. Searcy v. Singletary, 590 So. 2d 1034, 1034 n. 1 (Fla. 2d DCA 1991). Otherwise, a petition for a writ of mandamus is the proper method for review of the Department’s denial of gain time. Singletary v. Powell, 602 So. 2d 969 (Fla. 1st DCA 1992). Because Stovall did not allege that he is…
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Ashley v. Singletary, 706 So. 2d 1373 (Fla. 1st DCA 1998)…n the Tenth Judicial Circuit, only a court in that circuit has the power to entertain a petition for writ of habeas corpus, and therefore is the only court with territorial jurisdiction to adjudicate the merits of his claim.”); Searcy v. Singletary, 590 So. 2d 1034, 1034 n. 1 (Fla. 2d DCA 1991) (“Mandamus in the circuit court where the prisoner is housed is the proper remedy to compel the award of gain-time.”). Accordingly, we affirm the circuit court’s order without prejudice to appellant’s right to file a pe…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hall v. Louie L. Wainwright, 498 So. 2d 670 (Fla. 1st DCA 1986)
- Dugger v. Wiley Jerome Grant, 587 So. 2d 608 (Fla. 1st DCA 1991)
- McKEE v. Fort Lauderdale Produce Co., Inc., 503 So. 2d 412 (Fla. 4th DCA 1987)
- Diggs v. Dep't OF Corr., 503 So. 2d 412 (Fla. 1st DCA 1987)