John L. BRITT, Petitioner, v. Lawton CHILES, etc., et al., Respondents, 704 So. 2d 1046

OVERTON, Justice. John L. Britt petitions this Court for a writ of mandamus seeking to prohibit the governor, the attorney general, and the Department of Corrections (the department) from mandatorily requiring that he lose six months of eligibility to earn gain-time for a disciplinary infraction. We have jurisdiction. Art. V, § 3(b)(8), Fla. Const. We find that the United States Supreme Court’s decision in Lynce v. Mathis, — U.S. -, 117 S.Ct. 891, 137 L.Ed.2d 63 (1997), mandates that we grant the petition as it applies to the department.

John Britt is serving a seven-year sentence for an aggravated battery he committed on March 9, 1992. In June 1996, he was charged with a disciplinary infraction for the unauthorized use of alcohol or drugs. He received fifteen days’ disciplinary confinement, received ninety days’ loss of earned gain-time, and was rendered ineligible to earn incentive gain-time for a period of six months after receiving the disciplinary report. The penalty assessed was based on

section 944.281, Florida Statutes (1995), which provides that “[t]he department may declare that a prisoner” who violates a law or rule “shall not be eligible to earn incentive gain-time for up to 6 months,” and rule 33-11.0065(5)(a)l.-5. of the Florida Administrative Code, which implements

section 944.281. Britt has filed this petition for writ of mandamus seeking to prevent the governor and the department from applying

section 944.281 and rule 33-11.0065 to him based on an asserted e& post facto violation because the statute and rule were not in effect at the time he committed his offense. At the outset, we deny the petition as it applies to the governor and the attorney general. We conclude that the governor and the attorney general were improperly made parties to this petition given that they have no legal authority to award or forfeit gain-time based on a prisoner’s behavior. See Hatten v. State, 561 So.2d 562 (Fla.1990); Heath v. Becktell, 327 So.2d 3 (Fla.1976). We now address the petition as it pertains to the department.

At the time Britt committed his offense, incentive gain time was governed by two statutes pertinent to this petition: (1) sections 944.275(4)(

b) and (5), Florida Statutes (1991); and

(2) section 944.28(1), Florida Statutes (1991). Under

section 944.275(4)(b), Britt could earn up to twenty days per month of incentive gain time for good behavior. Additionally, subsection 944.275(5) provided: “When a prisoner is found guilty of an infraction of the laws of this state or the rules of the department, gain-time may be forfeited according to law.” (Emphasis added.)

Section 944.28(2)(

b) likewise provided: A prisoner’s right to earn gain-time during all or any part of the remainder of the sentence or sentences under which he is imprisoned may be declared forfeited because of the seriousness of a single instance of misconduct or became of the seriousness of an accumulation of instances of misconduct. (Emphasis added.) On October 1, 1995,

section 944.281 was adopted, effective January 1,1996. That

section provides: The department may declare that a prisoner who commits a violation of any law of the state or rule or regulation of the department or institution on or after January 1, 1996, and who is found guilty pursuant to

section 9hh.28(2), shall not be eligible to earn incentive gain-time for up to 6 months following the month in which the violation occurred. The department shall adopt rules to administer the provisions of this section. (Emphasis added.) Pursuant to the directive in

section 944.281, the department adopted rule 33.110065(5)(a)l.-5. Under that rule, Britt mandatorily lost eligibility to earn incentive gain-time for six months when he committed the disciplinary infraction. No discretion exists. The department argues that application of the new statute and rule to Britt do not violate the ex post facto clause of the federal or Florida constitutions because they alter penalties associated with in-prison misconduct and relate to penalties that are directed solely to the new conduct.

Further, the department contends that, because sanctions for possible future prison misconduct do not constitute a “significant” factor for either the trial judge or defendant with regard to plea bargains or calculation of the sentence imposed, the ex post facto clause is not implicated. The department’s arguments are essentially the same arguments it made recently in Lynce v.

Mathis, — U.S. -, 117 S.Ct. 891, 137 L.Ed.2d 63 (1997); that is, that changes relating to future events (in this case future misconduct), do not constitute a “significant factor” for either the trial judge or defendant at the time of sentencing. Rather, the department argues that disciplinary confinement and forfeiture of gain-time or the right to earn gain-time are merely management tools used to control and modify improper behavior. Further, the department argues that

section 944.281 is merely a further refinement of

section 944.28. Under the United States Supreme Court decision in Lynce, we are compelled to conclude that both of these arguments must fail. In Lynce, the United States Supreme Court reaffirmed the standard to be used in reviewing a statute for an ex post facto violation. “To fall within the ex post facto prohibition, a law must be retrospective — that is ‘it must apply to events occurring before its enactment’ — and it ‘must disadvantage the offender affected by it’ by altering the definition of criminal conduct or increasing the punishment for the crime.” — U.S. at -, 117 S.Ct. at 896 (citations omitted). The statute at issue,

section 944.281, changes the method of determining what punishment is to be imposed for a disciplinary infraction during an inmate’s confinement by allowing the department to eliminate an inmate’s opportunity to earn incentive gain-time for up to six months following the offense. This is similar to the situation at issue in Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981), because “by curtailing the availability of future credits it effectively postpone[s] the date when [an inmate] would become eligible for early release.” Lynce, — U.S. at -, 117 S.Ct. at 896.

In Weaver, the United States Supreme Court unanimously reversed this Court, finding that the department could not retroactively decrease the amount of gain-time awarded for an inmate’s good behavior. As stated in California Department of Corrections v. Morales, 514 U.S. 499, 509, 115 S.Ct. 1597, 1603, 131 L.Ed.2d 588 (1995), a court must determine whether a statute “produces a sufficient risk of increasing the measure of punishment attached to the covered crimes.” Applying these directives to the instant case, we must disagree with the department’s contentions.

Under the prior statute, eligibility for future credit was potentially subject to revocation; under the current statute and rule, revocation has become mandatory. Consequently, the latter statute works to the disadvantage of the prisoner by potentially lengthening the period that an inmate spends in prison in the face of a disciplinary action. The distinctions in the consequences of the two statutes become clear when the applicable administrative rules are examined. At the time of Britt’s offense, under

section 944.28, the department applied rule 33-22.008 to determine whether future eligibility to earn gain-time would be revoked. That rule provided in pertinent part as follows:

(4) Forfeiture of Unearned Gain Time. Recommendations for loss of unearned gain time shall be the exception rather than the rule. (

a) Loss of unearned gain time shall be considered only when the inmate has been involved in a serious assault or general disturbance and the inmate has not accrued enough gain time to achieve the desired corrective results. (Emphasis added.) Because Britt’s disciplinary infraction dealt with drug use, under the old rule, he would not have lost eligibility to earn gain-time. Under rule 33-11.0065(5)(a), which was enacted pursuant to

section 944.281, he became ineligible to earn gain-time for six months for that same offense. Thus, under the new statute, a more severe punishment is imposed than under the old. Like the situation in Lynce, the statute at issue disadvantages Britt because it allows the department to lengthen his sentence by increasing the punishment to be applied for disciplinary actions. Accordingly, for the reasons expressed, we grant Britt’s petition, holding that, upon this opinion’s becoming final, the department shall be barred from applying

section 944.281 and its corresponding administrative rule to Britt and any other inmate convicted of an offense committed prior to October 1, 1995, the date the statute became law. Because we trust that the department will fully comply with the dictates of this opinion, we withhold issuance of the writ. It is so ordered. KOGAN, C.J., and SHAW, HARDING and ANSTEAD, JJ., concur. GRIMES, J., dissents with an opinion, in which WELLS, J., concurs.