DOMINIC A. BRETTI, APPELLANT,
v.
LOUIE L. WAINWRIGHT, APPELLEE

Fla. 1st DCA | 1978-07-20
No. GG-292
BOYER, Acting C. J., and ERVIN, J., concur.
360 So. 2d 1299 Florida District Court of Appeal, First District (1978) Positive Treatment
Cited by 6 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Holding

The Division of Corrections cannot forfeit a prisoner's gain time without notice or hearing if an escape charge is nolle prossed.

Facts & Procedural History

A prisoner escaped, was returned, and the escape charge was nolle prossed. The Division of Corrections forfeited his gain time without notice or heari…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.

Topics
Gain Time Forfeiture Nolle Prosequi Writ Of Habeas Corpus Due Process

Explore caselaw by topic → Browse Gain Time Forfeiture cases and more on FLexlaw

Opinion of the Court
MILLS, Judge.

MILLS, Judge.

The issue before us is whether the Division of Corrections may forfeit all gain time earned by and extra gain time allowed a prisoner without notice or hearing where the State charges the prisoner with escape but nolle prosses the charge.

Bretti left confinement at a correctional center in Florida. He was later arrested in another state and returned to Florida. The State charged him with escape but subsequently nolle prossed the charge. Without notice or hearing, the Division of Corrections forfeited Bretti’s gain time and extra gain time. He petitioned the trial court for a writ of habeas corpus which was denied. He appeals.

Section 944.28(1), Florida Statutes (1971), provides that the Division shall, without notice or hearing, declare a forfeiture of all gain time and extra gain time allowed a prisoner when the prisoner escapes.

Section 944.28(2)(a) and (b), Florida Statutes (1971), states that the gain time and extra gain time shall be subject to forfeiture if the prisoner unsuccessfully attempts to escape but he shall be entitled to notice and hearing. In view of this section, it is clear that Section 944.28(1) applies only when the prisoner is convicted of escape. Rankin v. Wainwright, 351 F.Supp. 1306 (M.D.Fla.1972). By this construction, a prisoner receives a jury trial, therefore, is afforded due process.

In the case before us, the prisoner was not convicted of escape, thus, due process requires that he be afforded an administrative hearing to contest the charge of escape. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). Section 944.-28(1) and (2) affords a prisoner due process as to all other statutory and administrative charges.

We reverse the order appealed and remand this case to the trial court with instructions to remand to the Division of Corrections for appropriate administrative proceedings following the guidelines set forth in Section 944.28(2)(b).

BOYER, Acting C. J., and ERVIN, J., concur.

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By

  • Dugger v. Wiley Jerome Grant, 610 So. 2d 428 (Fla. 1992)
    …ation of the inmate’s procedural due process rights protected under both our state and federal constitutions. U.S. Const., amend XIV, § 1; Art. I, §§ 2, 9, Fla. Const.; cf. Rankin v. Wainwright, 351 F.Supp. 1306 (M.D.Fla.1972); Bretti v. Wainwright, 360 So. 2d 1299 (Fla. 1st DCA 1978). I agree that the Department may rely on the presentence investigation report when assigning provisional credits, provided these minimum due process rights are observed. BARKETT, C.J., and SHAW, J., concur.…
  • Causey v. State, 504 So. 2d 34 (Fla. 1st DCA 1987)
    …in-time and completion of the balance of the original sentence.” The circuit court has no authority to direct such a summary revocation of gain-time as part of its sentence. Valdes v. State, 469 So. 2d 868 (Fla. 3d DCA 1985); Bretti v. Wainwright, 360 So. 2d 1299 (Fla. 1st DCA 1982); Depson v. State, 363 So. 2d 43 (Fla. 1st DCA 1978). Such power is the exclusive province of the Department of Corrections, and even its power ceases upon the prisoner’s release from incarceration. §§ 944.275, .28 and .291, Fla.S…
  • Marshall v. Moore, 745 So. 2d 464 (Fla. 4th DCA 1999)
    …he escape in calculating just how much of the sentence he has actually served, so long as it gives him a hearing to contest the separate, administrative charge that he did in fact escape and remain at large for nearly 10 years. Bretti v. Wainwright, 360 So. 2d 1299 (Fla. 1st DCA 1978). Petitioner has been given such a hearing. . Richard Lovelace, To Althea: From Prison.…

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw