Richard L. DUGGER, etc., Petitioner, v. Jimmie WILLIAMS, Respondent, 593 So. 2d 180

PER CURIAM. We have for review Williams v. Dugger, 566 So.2d 819 (Fla. 1st DCA 1990), which certified the following question of great public importance: Whether the 1986 changes in § 944.30, Florida Statutes, effective October 1, 1986, are ex post facto when applied to prisoners convicted of capital felonies pri- or to the effective date of the statute. Id. at 822. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. Jimmie Williams was indicted for first-degree murder in 1976. In February 1978 he was sentenced to life in prison with a minimum mandatory term of twenty-five years.

In November 1987, Williams filed a request for executive clemency. The request summarily was denied. After exhausting administrative remedies, Williams appealed to the First District. He argued that under

section 944.30, Florida Statutes (1975), he was entitled to receive a mandatory recommendation for executive clemency from the Department of Corrections (DOC). DOC, on the other hand, argued that a 1986 law had amended the statute so that it no longer applied to capital felons such as Williams, and that there was no constitutional impropriety in applying these amendments to the present case. The district court disagreed with DOC and found that the statute was ex post facto as applied to Williams. The district court then certified the question to this Court. In Florida, a law or its equivalent violates the prohibition against ex post fac-to laws if two conditions are met: (

a) it is retrospective in effect; and (

b) it diminishes a substantial substantive right the party would have enjoyed under the law existing at the time of the alleged offense. Art. I, § 10, Fla. Const.; Waldrup v. Dugger, 562 So.2d 687, 691 (Fla.1990). There is no requirement that the substantive right be “vested” or absolute, since the ex post facto provision can be violated even by the retroactive diminishment of access to a purely discretionary or conditional advantage. Waldrup, 562 So.2d at 692.

Such might occur, for example, if the legislature diminishes a state agency’s discretion to award an advantage to a person protected by the ex post facto provision. This is true even when the person has no vested right to receive that advantage and later may be denied the advantage if the discretion otherwise is lawfully exercised. Id.

In other words, the error occurs not because the person is being denied the advantage (since there is no absolute right to receive it in the first place), but because the person is denied the same level of access to the advantage that existed at the time the criminal offense was committed. Id. As is obvious from this discussion, it is too simplistic to say that an ex post facto violation can occur only with regard to substantive law, not procedural law. Clearly, some procedural matters have a substantive effect.

Where this is so, an ex post facto violation also is possible, even though the general rule is that the ex post facto provision of the state Constitution does not apply to purely procedural matters. In Waldrup, for example, the violation occurred precisely because inmates were denied access to a discretionary procedure by which more advantageous amounts of gain-time possibly might be awarded, thereby reducing the inmates’ prison terms. The Waldrup case did not turn on the fact that the inmates lacked any absolute right to this gain-time and later could be lawfully denied it.

Rather, the case turned on the fact that the inmates clearly were denied the possibility of receiving the more advantageous awards. Id. In the present case, there is no dispute that the law applied to Williams is retrospective in effect, since the statute expressly applies “to any inmate in custody on or after July 1, 1987,” subject to an exception not relevant here. § 944.30, Fla. Stat. (Supp.1986). The real question is whether the 1986 amendments had the effect of diminishing a substantial substantive advantage that Williams would have enjoyed under the law existing at the time he committed his offense.

The relevant statute in effect when Williams’ crime took place was as follows: Any prisoner who is sentenced to life imprisonment, who has actually served 10 years and has sustained no charge of misconduct and has a good institutional record, shall be recommended by the [DOC] for a reasonable commutation of his sentence ... to a term for years, then such prisoner shall have the benefit of the ordinary commutation, as if the original sentence was for a term [of] years, unless it shall be otherwise ordered by the Board of Pardons. § 944.30, Fla.Stat. (1975) (emphasis added).

As amended in 1986 and before, being repealed in 1988, the same statutory

section stated: Any person sentenced to the custody of the department for a term in excess of 40 years, up to and including life imprisonment, for a noncapital felony and who has served 10 calendar years of such sentence with the cumulative loss of no more than 30 days of gain-time may be recommended by the Secretary of Corrections for an investigation pursuant to s. 947.25. § 944.30(1), Fla.Stat. (Supp.1986) (emphasis added).

During oral argument, counsel for DOC called to the Court’s attention one further complication: The Rules of Executive Clemency applicable to Williams were changed by the Governor and Cabinet in 1985, after the crime in question was committed. Under both the pre-1986 statute and the pre-1985 Rules submitted to this Court by DOC, it appears that Williams would have received the following upon meeting the conditions of

section 944.30: (

a) DOC’s mandatory recommendation for commutation of sentence, § 944.30, Fla. Stat. (1975); (

b) an investigation by the Parole and Probation Commission; and (

c) eventual placement on the agenda of the Executive Clemency hearing. Fla.Admin.Code Ann. tit. 27 app. As supplemental authority, DOC has presented the new Rules of Executive Clemency that DOC’s counsel stated were approved in 1985. Under these rules, the DOC recommendation for a commuted sentence remains a necessary element before Williams’ case can be heard by the Governor and Cabinet under the provisions of

section 944.30. However, in addition, Williams -must obtain a waiver from the Governor and at least three members of the Cabinet. Without both the DOC recommendation and the waiver, there is no possibility of Williams obtaining either a hearing or a commutation of his sentence under

section 944.30. Fla.R.Executive Clemency 11(C)(3) (not published in Fla.Admin.Code). Thus, no matter which of these clemency rules is applicable, we must find that an ex post facto violation exists. Read together, the applicable statutes and both versions of the Rules of Executive Clemency clearly contemplate that Williams has no possibility whatsoever of obtaining the hearing provided by

section 944.30 before the Governor and Cabinet — and thus no possibility of a commuted sentence pursuant to the statutory mechanism — unless he at least obtains the DOC recommendation promised him by the pre-1986 version of

section 944.-30. This plainly is a substantial substantive disadvantage that is being retrospectively applied to Williams, in violation of Florida law. Art. I, § 10, Fla. Const.; see Waldr-up. Indeed, it is directly analogous to the denial of access to the gain-time procedure that occurred in Waldrup. Accordingly, on remand,, the trial court shall determine if Williams met the requirements of the pre-1986 version of

section 944.30. If so, then Williams is entitled to mandamus ordering DOC to comply with the statute. Art. I, § 10, Fla. Const. In reaching this conclusion, we disagree with the argument that the statute in question is a nullity because it impinges upon the executive clemency power. Clearly this is not true. On its face, the statute does no more than direct DOC to recommend a commutation of sentence. This is entirely within the legislative prerogative, since DOC was created by the legislature. § 20.315, Fla.Stat. (Supp.1990).

The executive still retains full discretion, subject only to its own Rules of Executive Clemency and the state Constitution, to accept or reject the recommendation. There thus is no usurpation of executive authority here. For the foregoing reasons, the result reached by the district court below is approved. We remand to the trial court for further proceedings consistent with the views expressed here. It is so ordered. SHAW, C.J., and BARKETT, GRIMES and HARDING, JJ., concur. KOGAN, J., concurs specially with an opinion, in which BARKETT, J., concurs.

McDONALD, J., dissents with an opinion, in which OVERTON, J., concurs. . Thus, the ex post facto provision remains unoffended if, at the time the crime was committed, the same level of access to the advantage was not guaranteed to a class of persons that presently includes the defendant. Our opinion in Dugger v.

Rodrick, 584 So.2d 2 (Fla.1991), is distinguishable from the present case precisely because it dealt with such a speculative access to an "advantage.” In Rodrick, the issue was provisional credits given to inmates solely to relieve prison overcrowding, which incidentally reduced the prison terms of the inmates. Such credits are wholly contingent upon outside variables that had no relation to any class the inmates might fall within. Therefore, this particular "advantage" was guaranteed to no specific class of inmates at the time their crimes were committed and could not give rise to an ex post facto violation.