Russell CALAMIA, Petitioner, v. Harry K. SINGLETARY, Jr., etc., Respondent; Jeffrey Lynn HOCK, Petitioner, v. Harry K. SINGLETARY, Jr., Respondent, 686 So. 2d 1337

GRIMES, Justice. Russell Calamia petitions this Court for a writ of habeas corpus; Jeffrey Lynn Hock petitions this Court for a writ of mandamus. We have jurisdiction. Art. V, § 3(b)(8), (9), Fla. Const. Because their cases present substantially the same questions, they were consolidated for our consideration. Petitioners, both inmates, allege that the

interpretation of sections 944.277, Florida Statutes (Supp.1992), and 944.278, Florida Statutes (1993), which deprived them of both previously awarded provisional credits and the possibility of future awards of such credits, constitutes an ex post facto violation in contravention of the United States and Florida Constitutions. Calamia’s petition for writ of habeas corpus was filed with this Court on July 27, 1994. This Court denied the petition. Calamia v. Singletary, 645 So.2d 450 (Fla.1994).

The United States Supreme Court vacated the denial of the petition and remanded it here for reconsideration in light of California Department of Corrections v. Morales, 514 U.S. 499, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995). Calamia v. Singletary, — U.S. —, 115 S.Ct. 1995, 131 L.Ed.2d 998 (1995). Calamia was charged "with first-degree murder for a homicide committed January 3, 1986. At trial, he agreed to plead nolo con-tendere to the reduced charge of second-degree murder. On January 14, 1988, he was sentenced to twenty years in prison, including a three-year minimum mandatory sentence for possession of a firearm.

Hock was charged with first-degree murder for a homicide committed on October 1, 1988. He was found guilty of second-degree murder. On May 11, 1990, Hock was sentenced to thirty-two years in prison followed by ten years’ probation. In 1987, the legislature enacted

section 944.276, Florida Statutes (1987), which provided that when the inmate population reached 98% of lawful capacity, the Secretary of the Department of Corrections had the authority to award up to sixty days’ administrative gain time to all inmates who were earning incentive gain time.

Section 944.276 was repealed in 1988 and replaced by

section 944.277, Florida Statutes (Supp.1988), which provided that when the inmate population reached 97.5% of lawful capacity, the Secretary could grant up to sixty days of provisional credits to all inmates earning incentive gain time. Ch. 88-122, §§ 5 and 6, at 535-37, Laws of Fla. As a consequence of prison overcrowding, the Secretary awarded Calamia provisional credits of 420 days and Hock provisional credits of 360 days. However, effective January 1, 1990,

section 944.277 was amended to exclude those convicted of murder in any degree from receiving credits. Because both Calamia and Hock had been convicted of second-degree murder, their provisional credits were cancelled. The petitioners’ ex post facto arguments have been considered by this Court in previous decisions. In Blankenship v. Dugger, 521 So.2d 1097, 1098-99 (Fla.1988), this Court rejected an argument that

section 944.276, Florida Statutes (1987), which can-celled the eligibility of prisoners who had been convicted of certain serious felonies for administrative gain time, was ex post facto as applied to prisoners whose crimes were committed before the enactment of

section 944.276. We explained that unlike laws that awarded time off for a prisoner’s good behavior, the administrative gain-time statutes made no guarantee that a prisoner would obtain the benefit of gain time because administrative gain time was awarded solely for the administrative convenience of the Department of Corrections. Blankenship, 521 So.2d at 1099. In Dugger v. Rodrick, 584 So.2d 2 (Fla.1991), cert. denied, 502 U.S. 1037, 112 S.Ct. 886, 116 L.Ed.2d 790 (1992), we quashed the district court of appeal’s decision directing the trial court to grant a prisoner’s petition for writ of mandamus which asserted that the denial of provisional credits under

section 944.277, Florida Statutes (Supp.1988), constituted an ex post facto application of the law. We differentiated provisional credits from basic gain time and incentive gain time because these awards are quantifiable elements of the length of a prisoner’s sentence. We explained: [T]he eligibility and receipt by a prisoner of provisional credits for prison overcrowding, regardless of what they are called, is in no way tied to overall length of sentence. The need for and application of such awards are contingent upon many outside variables that contribute to prison overcrowding.

There is no relationship to the original penalty assigned to the crime at the time it was committed nor to the ultimate punishment meted out. The sole purpose of the early-release statutes is to provide a temporary mechanism to alleviate the administrative crisis created by prison overcrowding while continuing to protect the public from violent offenders. The statutes, procedural in nature, are not directed toward the traditional purposes of punishment. Rodrick, 584 So.2d at 4. We reiterated this position in Dugger v.

Grant, 610 So.2d 428, 430 (Fla.1992), by pointing out once again that the administrative gain-time statutes were enacted not for the benefit of prisoners but merely as a procedure utilized by the Department of Corrections to alleviate prison overcrowding. Likewise, in Griffin v. Singletary, 638 So.2d 500 (Fla.1994), we upheld the cancellation of a prisoner’s provisional credit based on the authority of opinion 92-96 of the Florida Attorney General and

section 944.277(l)(i), Florida Statutes (Supp.1992). At the outset we explained that the administrative gain time specified in the earlier statutes was the same as the provisional credit described in later legislation and that the sole purpose of both forms was to reduce prison overcrowding when the correctional system reached a specified percentage of its lawful capacity. Griffin, 638 So.2d at 501.

We held that the ex post facto clauses of both the federal and state constitutions did not prohibit the legislature from passing, nor the Department of Corrections from enforcing, legislation that limited or eliminated the availability of this species of credit or gain time. Id. In response to the contention that the Department of Corrections could not cancel a prisoner’s credits or gain time once it was awarded, we stated: [W]e believe the state has identified a legally sufficient reason to revoke provisional credits/administrative gain time for inmates such as Griffin.

Revocation for present purposes has been confined to those inmates convicted of especially serious crimes, including murder, certain offenses against children, and certain sexual offenses. In Griffin’s case, the crime was second degree murder. We believe the state has a more than sufficient reason because of its need to protect society in general from certain categories of felons.

Given the inherently contingent nature of provisional credits and administrative gain time and the strong societal interest, we hold that the courts may not go behind the state’s decision to cancel the provisional credits and administrative gain time of this inmate. This conclusion is only reinforced by the fact that the instant cancellation was pursuant to newly enacted legislation that will be applicable to all similarly situated inmates. Absent this legislative authorization, DOC might have been required to. initiate proceedings to cancel the credits/gain time. Id. at 501-02.

The petition for certiorari in Rodrick was denied by the United States Supreme Court. Nothing has changed since our decisions in Blankenship, Grant, and Griffin, or since the United States Supreme Court denied certiorari in Rodrick, except that the United States Supreme Court remanded the instant eases for reconsideration in light of its recent decision in Morales. Calamia, — U.S. — at, 115 S.Ct. at 1996.

Ironically, the Morales Court rejected a prisoner’s contention that a reduction in the frequency of hearings to determine eligibility for parole violated the Ex Post Facto Clause. — U.S. at-, 115 S.Ct. at 1601-05. The Morales Court reiterated the same principles and relied upon the same cases that we had considered in Blankenship, Rodrick, Grant, and Griffin.

In fact, the Morales analysis of the Ex Post Facto Clause supports our prior holdings: Our opinions in Lindsey, Weaver, and Miller suggested that enhancements to the measure of criminal punishment fall within the ex post facto prohibition because they operate to the “disadvantage” of covered offenders. See Lindsey [v. Washington], 301 U.S., [397] at 401, 57 S.Ct., [797] at 799 [81 L.Ed. 1182 (1937)]; Weaver [v. Graham], 450 U.S., [24] at 29, 101 S.Ct., [960] at 964 [67 L.Ed.2d 17 (1981)]; Miller [v. Florida], 482 U.S., [423] at 433, 107 S.Ct., [2446] at 2452-53 [96 L.Ed.2d 351 (1987)].

But that language was unnecessary to the results in those cases and is inconsistent with the framework developed in Collins v. Youngblood, 497 U.S. 37, 41, 110 S.Ct. 2715, 2718, 111 L.Ed.2d 30 (1990).

After Collins, the focus of the ex post facto inquiry is not on whether a legislative change produces some ambiguous sort of “disadvantage,” nor, as the dissent seems to suggest, on whether an amendment affects a prisoner’s “opportunity to take advantage of provisions for early release,” see post, at 1607, but on whether any such change alters the definition of criminal conduct or increases the penalty by which a crime is punishable. Morales, — U.S. at — n. 3, 115 S.Ct. at 1602 n. 3.

Thus, the United States Supreme Court has receded from its earlier position that enhancements to the measure of criminal punishment which operate to “disadvantage” applicable offenders fall within the ex post facto prohibition of the constitution. As the Court now explains, the Ex Post Facto Clause only comes into play when a legislative change “alters the definition of criminal conduct or increases the penalty by which a crime is punishable.” Id. Clearly, the cancellation of provisional credits has no relationship to the penalties for the crimes which petitioners committed.

The lower federal courts also agree with our decisions holding that administrative gaintime and provisional credit statutes are administrative and procedural in nature and not subject to ex post facto proscriptions. For example, the recent decision in Magnotti v. Singletary, No. 93-8554-CIV-MORENO (S.D.Fla.

Mar. 24, 1994) (unpublished order adopting the report of the magistrate judge dated March 21, 1994), cited with approval our decision in Griffin and adopted the report of the magistrate judge which stated that “[t]he provisional credits in § 944.277 were contemplated not as a prisoner entitlement but merely as an escape valve which would be triggered only by the need to alleviate overcrowding in the state prison system.” Magistrate judge’s report at 6. Magnotti was affirmed in an unpublished opinion by the Eleventh Circuit Court of Appeals. See Magnotti v. Singletary, 67 F.3d 314 (11th Cir.1995).

Similarly, in Eastman v. Singletary, No. 94-869-CIV-DLG (S.D.Fla.1994) (unpublished order adopting the report of the magistrate judge dated October 20, 1994), the district court adopted the report of the magistrate judge who reasoned that the retroactive denial of administrative gain time and provisional credits by the adoption of

section 944.278, Florida Statutes (1993), did not violate the Ex Post Facto Clause of the United States Constitution. In affirming this holding, the Eleventh Circuit Court of Appeals approved the reasoning of the magistrate judge in an unpublished opinion. See Eastman v. Singletary, 70 F.3d 1285 (11th Cir.1995) (table report of unpublished opinion affirming reasoning of magistrate judge).

In another case addressing a prior petition by Hock, one of the prisoners in this case, the Eleventh Circuit Court of Appeals stated: [T]he retroactive application of control release does not actually disadvantage the petitioner by reducing his opportunity to shorten his time in prison. Because control release is based on an arbitrary and unpredictable determinant, the prison population level, an inmate has no reasonable expectation at the time he is sentenced that the prison population will reach the specified triggering level and that his incarceration will therefore be reduced. Hock v.

Singletary, 41 F.3d 1470, 1472-73 (11th Cir.1995), cert. denied, — U.S. —, 116 S.Ct. 715, 133 L.Ed.2d 668 (1996). In addition, the State posits that in a number of other cases, federal district courts have held that Florida’s administrative gain-time and provisional credit statutes do not run afoul of ex post facto proscriptions. See, e.g., Williams v. Dugger, No. 90-602-CIV-T-3A98(A) (M.D. Fla. June 7,1991); Stafford v. Dugger, No. 89-295-CIV-J-16 (M.D.Fla. July 10, 1990); Aman v. Martinez, No. 88-50124-RV (N.D.Fla. May 8,1989); Manzanero v. Dugger, No. 88-6076-CIV-SCOTT (S.D.Fla. Sept. 29,1988); Petrone v.

Dugger, No. 88-12041-CIVATKINS (S.D.Fla. Aug. 29, 1988), aff'd, 886 F.2d 1323 (11th Cir.1989). Further, in Monroe v. Florida Legislature, 641 So.2d 863 (Fla.1994), we denied the prisoner’s petition on the authority of our decision in Griffin. Monroe, 641 So.2d at 864. Griffin presented the same issues that are being argued by the prisoners in the instant cases. Subsequent to its remand of the instant cases, the United States Supreme Court denied the petition for certiorari to review our decision in Monroe. Monroe v. Florida Legislature, — U.S. —, 115 S.Ct. 2559, 132 L.Ed.2d 812 (1995).

Thus, it is clear that the United States Supreme Court has not manifested any disapproval of our decisions holding that the retroactive cancellation of administrative gain time and provisional credits does not violate the Ex Post Facto Clause. To now reverse course and reinstate the administrative or provisional gain time would provide an unearned and unwarranted windfall to thousands of prisoners. The petitioners’ remaining arguments are without merit. We deny the petitions. It is so ordered. KOGAN, C.J., and OVERTON and WELLS, JJ., concur.

HARDING, J., dissents with an opinion, in which SHAW and ANSTEAD, JJ., concur. . At that time, both sections 944.276 and 944.277 excluded certain classes of persons from receiving provisional credits, but neither Calamia nor Hock fell within these exclusions. . "Administrative gain time” and “provisional credits” are synonymous. See Griffin v. Singletary, 638 So.2d 500, 501 (Fla.1994) ("[L]egisla-tive history discloses that the legislature in 1988 merely changed the name of 'administrative gain time’ to 'provisional credits’...."). . Ch. 89-100, § 4, at 256, Laws of Fla. .

Thereafter, in 1993 the legislature repealed

section 944.277 and enacted

section 944.278, which canceled all previously granted provisional credits for those in custody at that time. Ch. 93-406, § 32, at 2966, and § 35, at 2967, Laws of Fla. . We have maintained this distinction in Gwong v. Singletary, 683 So.2d 109 (Fla.1996), in which we recently held that inmates could not be retroactively deprived of the right to earn incentive gain time. . The term "provisional” itself bespeaks the contingent nature of the credit. . There is another reason why Calamia's petition would have to be denied. It is clear that any ex post facto analysis relates to the date of the crime rather than the conviction.

Section 944.276, the statute under which Calamia makes his claim, was not enacted until after he committed his crime. The earlier prison overcrowding statute,

section 944.598, Florida Statutes (1985), which was in effect at the time of Calamia's crimes, was never implemented. Therefore, even under the analysis of the dissenting opinion, Calamia would not be entitled to relief.