ALLEN MCARTHUR, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Florida appellate court affirmed denial of habeas corpus, holding that the legislature may constitutionally distinguish between completed and attempted sexual battery for purposes of gain time eligibility.
The legislature may constitutionally deny gain time to persons convicted of completed sexual battery while permitting it for those convicted of attempted sexual battery.
[1] Statutory restriction on gain time for sexual battery applies only to completed acts, not attempted sexual battery, and does not violate equal protection where legislatur…
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Join FLexlaw to unlock all legal intelligence“if the legislature had meant section 794.011(7) to include those who are convicted of attempted sexual battery, legislature would have so stated”
Court citing Zopf v. Singletary to support statutory interpretation that gain time restriction applies only to completed sexual battery
Allen McArthur was charged with life felony sexual battery and pleaded no contest to second degree felony sexual battery on September 6, 1993. Under F…
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PETERSON, J.
Allen McArthur was charged with committing a life felony sexual battery1 on Septem ber 6,1993. He ultimately pled no contest to a second degree felony sexual battery.2 Pursuant to subsection 794.011(7), he was automatically denied basic gain time. The statute makes gain time unavailable to a person who commits a sexual battery after October 1,1992.
McArthur appeals the denial of his petition for habeas corpus in which he alleges that the Department of Corrections is violating his constitutional equal rights because a person who is convicted of an attempted sexual battery can be convicted of a first degree felony and still obtain basic gain time, and he was only convicted of a second degree felony. McArthur is correct that a person convicted of attempted sexual battery, even when such crime is a first degree felony, is still eligible for basic gain time, even though he, as one who was convicted of a completed act of sexual battery, is not. The legislature has decided that persons convicted of completed acts of sexual battery are not entitled to gain time while those convicted only of an attempt do not lose gain time. Zopf v. Singletary, 686 So. 2d 680 (Fla. 1st DCA 1996) (if the legislature had meant section 794.011(7) to include those who are convicted of attempted sexual battery, legislature would have so stated).
We agree with the trial court that it was the legislature’s prerogative to describe the crimes and prescribe the penalties it deems appropriate for those crimes.
AFFIRMED.
W. SHARP, and ANTOON, JJ., concur. . § 794.011 (3), Fla. Stat. (1993).
. § 794.011(5), Fla. Stat. (1993).