RICHARD WESTBERRY, PETITIONER,
v.
MICHAEL W. MOORE, THE FLORIDA DEPARTMENT OF CORRECTIONS, AND THE FLORIDA PAROLE COMMISSION, RESPONDENTS
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Richard Westberry petitioned for habeas corpus relief, challenging the forfeiture of his gain time credits upon revocation of his Control Release status. The Florida Supreme Court denied the petition, holding that inmates who accepted early release under the Control Release program waived any ex post facto challenges to the forfeiture of gain time, regardless of when their underlying offense was committed.
The court held that Westberry could not challenge the forfeiture of his gain time credits under ex post facto principles because by accepting early release under the Control Release program, he waived any such claims, regardless of when his offense was committed. The forfeiture authority for Control Release revocation (effective September 1, 1990) applied to Westberry because he had the option to accept or reject early release after that date.
[1] Forfeiture of gain time upon revocation of control release is permissible even if the underlying offense was committed prior to the effective date of the forfeiture statu…
[2] Acceptance of early release under a control release program waives any ex post facto claim an inmate might have regarding the forfeiture of gain time upon revocation.
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Join FLexlaw to unlock all legal intelligence“since inmates whose offenses were committed prior to that date were given the option to accept or reject early release on Control Release, such inmates waived any ex post facto claim they might have had.”
Establishes the court's key holding that acceptance of Control Release constitutes a waiver of ex post facto challenges to forfeiture provisions enacted after the offense but before the acceptance of release.
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Join FLexlaw to unlock all legal intelligenceWestberry began serving a ten-year sentence in 1989 for offenses committed in 1987-1988. He was awarded Provisional Credits and Control Release Credit…
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PER CURIAM.
Richard Westberry petitions this Court for writ of habeas corpus. We have jurisdiction. Art. V, § 3(b)(9), Fla. Const. FACTS
In 1989, Westberry began serving an overall ten-year sentence for criminal offenses committed in 1987 and 1988. Westberry was awarded both Provisional Credits and Control Release Credits and accepted early release under the Control Release program in 1991. Westberry violated his Control Release and was returned to prison in 1997. All his previously awarded “regular” gain time (Incentive Gain Time and Basic Gain Time) and his overcrowding credits (Control Release Credits and Provisional Credits) were forfeited. Westberry subsequently filed a petition for writ of habeas corpus in this Court arguing that his case was similar to the inmate’s case in State v. Lancaster, 731 So. 2d 1227 (Fla.1998) (State could not forfeit overcrowding credits because inmate’s offense had been committed prior to October 1, 1989, when the relevant forfeiture provision went into effect). West-berry argued that since his underlying criminal offense, like Lancaster’s, was committed prior to October 1, 1989, the State could not forfeit his regular or overcrowding gain time.
ANALYSIS
We conclude that Westberry’s case is not similar to Lancaster’s case. Lancaster concerned the forfeiture of gain time upon probation revocation. Since the statutory authority for gain time forfeiture upon probation revocation did not go into effect until October 1, 1989, it could not be applied to Lancaster, whose offense was committed prior to that date.
Westberry’s case concerns forfeiture of gain time upon Control Release revocation (not probation revocation). As explained in Bowles v. Singletary, 698 So. 2d 1201 (Fla.1997) (allowing forfeiture of “regular” gain time upon Control Release revocation), and Lewis v. Moore, 753 So. 2d 1242 (Fla.2000) (allowing forfeiture of Control Release Credits upon Control Release revocation), although the Control Release gain time forfeiture authority went into effect on September 1,1990, since inmates whose offenses were committed prior to that date were given the option to accept or reject early release on Control Release, such inmates waived any ex post facto claim they might have had.
Even though Lewis spoke only of the overcrowding gain time known as Control Release Credits and Westberry lost two different types of overcrowding credits (Provisional Credits and Control Release Credits), the reasoning of Lewis applies equally to both. This Court has already stated in State v. Lancaster, 781 So. 2d 1227, 1230-31 (Fla.1998), that since the relevant forfeiture provisions provide for the forfeiture of “all gain time” and Provisional Credits are merely another type of overcrowding gain time, they are forfeitable under the same provisions as those at issue in Lewis.
Therefore, logically, Westberry waived any ex post facto claim he may have had for any overcrowding gain time (including both Provisional Credits and Control Release Credits) when he accepted early release under the Control Release program. Therefore, we deny the instant petition for writ of habeas corpus.
It is so ordered.
WELLS, C.J., and SHAW, HARDING, ANSTEAD, PARIENTE, LEWIS and QUINCE, JJ., concur. . See §§ 944.28(1); 947.141(6), Fla. Stat. (1999).
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Knox v. State, 873 So. 2d 1250 (Fla. 5th DCA 2004)…prior circuit court ruling, the response noted that Knox’s claim had also been litigated with .the Florida Parole Commission. In a per curiam affirmance, the First District affirmed the denial of relief as follows: AFFIRMED. See Westberry v. Moore, 772 So. 2d 1208, 1209 (Fla.2000) (holding that a defendant who accepts the benefits of control release waives any argument that application of the control release program, in the form of the forfeiture of gain time, was an ex post violation because control release…1 / 2
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Wilson v. Moore, 782 So. 2d 865 (Fla. 2001)…n filed a petition for writ of habeas corpus asserting that the State had improperly forfeited his credits and that he had been forced out on control release. ANALYSIS We conclude that this case is controlled by our decision in Westberry v. Moore, 772 So. 2d 1208 (Fla.2000), in which we recognized that, like other types of gain time, control release credits and provisional credits are forfeitable upon control release revocation if the releasee’s underlying criminal offenses were committed after the effective…
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Knox v. Fla. Parole Comm'n, 825 So. 2d 958 (Fla. 1st DCA 2002)…PER CURIAM. AFFIRMED. See Westberry v. Moore, 772 So. 2d 1208, 1209 (Fla.2000) (holding that a defendant who accepts the benefits of control release waives any argument that application of the control release program, in the form of the forfeiture of gain time, was an ex post violation because control release…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Bowles v. Singletary, 698 So. 2d 1201 (Fla. 1997)
- State v. Lancaster, 731 So. 2d 1227 (Fla. 1998)
- Clemon Lewis, Jr. v. Moore, 753 So. 2d 1242 (Fla. 2000)