IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
NAIRN D. NEWELL, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Petitioner, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D16-2025
FLORIDA DEPARTMENT OF
CORRECTIONS,
Respondent.
___________________________/
Opinion filed March 3, 2017.
Petition for Writ of Certiorari -- Original Jurisdiction.
Nairn D. Newell, pro se, Petitioner.
Kenneth S. Steely, General Counsel, and Gayla Grant, Assistant General Counsel,
Florida Department of Corrections, Tallahassee, for Respondent.
PER CURIAM.
Petitioner, Nairn D. Newell, seeks to compel the Florida Department of
Corrections (“FDOC”) to award him 60 days of gain-time to which he asserts he is
entitled following the completion of his general educational development certificate
(“G.E.D.”). We have jurisdiction in accordance with Sheley v. Florida Parole
Commission, 703 So. 2d 1202 (Fla. 1st DCA 1997), and determine that the FDOC has
the statutory authority to award, within its discretion, 60 days of gain-time to inmates
whose crimes were committed on or after October 1, 1995, and who have completed
their G.E.D. certificate.
In the FDOC’s administrative ruling, for which the circuit court denied certiorari
relief, the FDOC concluded that it had no authority to consider petitioner’s request for
the one-time 60-day gain-time award because the statute providing for such an award,
section 944.275(4)(d), Florida Statutes, does not apply to inmates like petitioner whose
offenses were committed on or after October 1, 1995. We disagree; although the 60-
day award is clearly within the FDOC’s discretion, the FDOC was required, at a
minimum, to consider petitioner’s request.
Subparagraphs 944.275(4)(b)1-3 govern the award of monthly incentive gain-
time as follows:
(b) For each month in which an inmate works diligently, participates in
training, uses time constructively, or otherwise engages in positive
activities, the department may grant incentive gain-time in accordance
with this paragraph. The rate of incentive gain-time in effect on the date
the inmate committed the offense which resulted in his or her
incarceration shall be the inmate's rate of eligibility to earn incentive gain-
time throughout the period of incarceration and shall not be altered by a
subsequent change in the severity level of the offense for which the inmate
was sentenced.
1. For sentences imposed for offenses committed prior to January 1, 1994,
up to 20 days of incentive gain-time may be granted. If granted, such gain-
time shall be credited and applied monthly.
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2. For sentences imposed for offenses committed on or after January 1,
1994, and before October 1, 1995:
a. For offenses ranked in offense severity levels 1 through 7, under
former s. 921.0012 or former s. 921.0013, up to 25 days of incentive gain-
time may be granted. If granted, such gain-time shall be credited and
applied monthly.
b. For offenses ranked in offense severity levels 8, 9, and 10, under
former s. 921.0012 or former s. 921.0013, up to 20 days of incentive gain-
time may be granted. If granted, such gain-time shall be credited and
applied monthly.
3. For sentences imposed for offenses committed on or after October 1,
1995, the department may grant up to 10 days per month of incentive gain-
time, except that no prisoner is eligible to earn any type of gain-time in an
amount that would cause a sentence to expire, end, or terminate, or that
would result in a prisoner's release, prior to serving a minimum of 85
percent of the sentence imposed. For purposes of this subparagraph,
credits awarded by the court for time physically incarcerated shall be
credited toward satisfaction of 85 percent of the sentence imposed. Except
as provided by this section, a prisoner shall not accumulate further gain-
time awards at any point when the tentative release date is the same as that
date at which the prisoner will have served 85 percent of the sentence
imposed. State prisoners sentenced to life imprisonment shall be
incarcerated for the rest of their natural lives, unless granted pardon or
clemency.
§ 944.275(4)(b)1-3, Fla. Stat. (emphasis added). Subparagraph 944.275(4)(d), which
provides for the 60-day educational gain-time award, reads in relevant part:
Notwithstanding subparagraphs (b)1. and 2., the education program
manager shall recommend, and the Department of Corrections may grant,
a one-time award of 60 additional days of incentive gain-time to an
inmate who is otherwise eligible and who successfully completes
requirements for and is awarded a high school equivalency diploma or
vocational certificate.
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§ 944.275(4)(d), Fla. Stat.
The FDOC’s position is that because the 60-day award is granted all at once
pursuant to the educational gain-time award subsection, it would necessarily be in
excess of the 10-day-per-month cap established in the general gain-time subsection.
The FDOC also argues that because subparagraph (d) of the educational award
subsection begins with, “[n]otwithstanding subparagraphs (b)1. and 2,” but omits
mention of subparagraph (b)3 regarding the award of gain-time for offenses that
occurred on or after October 1, 1995, the statutory construction doctrine of expressio
unius est exclusio alterius requires a reading that subparagraph (d) does not apply to
inmates whose offenses were committed on or after October 1, 1995. We disagree with
the FDOC.
Judge Benton, in his concurrence in Perez v. McNeil, 995 So. 2d 989 (Fla. 1st
DCA 2008), noted that the FDOC’s interpretation of the educational gain-time
subsection was not the only interpretation. Judge Benton first noted the FDOC’s
position as posited by the Staff Analysis of the educational gain-time subsection’s bill:
“If the Staff Analysis is correct that no more than ten days of incentive gain-time of
whatever kind can be awarded per month, a 60-day award, whether for educational
achievement under subsection (d)-or, indeed, for heroism under subsection (c)-can
never be made (at least in a single month) against a sentence imposed for an offense
occurring on or after October 1, 1995.” Perez, 995 So. 2d at 991 (Benton, J.,
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concurring) (citing Fla. H.R. Comm. on Corr., HB 687 (1995) Staff Analysis 3 (final
Jul. 13, 1995) (on file in the State Archives)). However, Judge Benton further stated,
“[t]his is not . . . the only possible reading of section 944.275(4)(b), which can also be
read as imposing the ten-day-per-month limit only on ‘incentive gain-time [granted] in
accordance with this paragraph,’ i.e., section 944.275(4)(b).” Id. at n.2 (emphasis
added). *
Faced with the question of which is the correct reading, we conclude that from
the face of the statute itself, the second reading is correct; the phrase “in accordance
with this paragraph” operates to limit the general incentive gain-time subsection
944.275(4)(b) and does not affect the educational gain-time award provided for under a
separate subsection, 944.275(4)(d).
There are two problems with the reading urged by the FDOC: 1) the omission of
subparagraph (3) from the educational gain-time award subsection is not dispositive
because the educational gain-time award subsection was enacted before subparagraph
*
In Perez v. McNeil, as noted in Judge Benton’s concurrence, this court held the
inmate whose offense was committed on or after October 1, 1995, was ineligible to
receive the 60-day gain-time award for completing his G.E.D. not because of the date
his offense was committed, but because the gain-time award would have caused the
inmate to serve less than 85% of his sentence contrary to section 944.275(4)(b)3,
Florida Statutes. Perez v. McNeil, 995 So. 2d 989 (Fla. 1st DCA 2008) (Benton, J.,
concurring). No similar allegation that the award of the educational gain-time would
cause appellant to serve less than 85% of his sentence has been raised here.
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(3) was added to the general incentive gain-time subsection; and 2) it would result in
repeal of a statute by implication, which is unfavored.
First, subparagraph (3) of the general incentive gain-time subsection, which
requires inmates who committed their offenses on or after October 1, 1995, to serve at
least 85% of their sentences, was enacted when the educational gain-time award
subsection was already in existence. The failure of the educational gain-time
subsection to carve out an exclusion for subparagraph (3) of the general incentive gain-
time subsection, therefore, does not necessarily evince a legislative intent for
subparagraph (3) to control absent a conflict, as subparagraph (3) did not exist at the
time the educational gain-time subsection was created.
Second, the 85% limitation does not say anything about repealing the G.E.D.
gain-time subsection; if the Legislature had wished to repeal the educational gain-time
subsection, it would have been more explicit.
The only clear conflict between these subsections is the one identified in Judge
Benton’s concurrence in Perez, 995 So. 2d at 991-92, that the application of the
educational credits cannot cause an inmate to serve less than 85% of the sentence as
stated in the general gain-time subsection. That conflict is not alleged to exist in the
current case.
Thus, the FDOC’s reading of the statute would effectively repeal the educational
gain-time award subsection by implication, determining that the gain-time awarded
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would be unavailable for any inmate who committed an offense on or after October 1,
1995.
Repeal by implication is not favored. Carcaise v. Durden, 382 So. 2d 1236 (Fla.
5th DCA 1980). “There is a general presumption that later statutes are passed with
knowledge of prior existing laws, and a construction is favored which gives each one a
field of operation, rather than have the former repealed by implication.” Oldham v.
Rooks, 361 So. 2d 140, 143 (Fla. 1978); see also State ex rel. Gerstein v. Hialeah Race
Course, Inc., 245 So. 2d 53 (Fla. 1971).
[T]he mere fact that a later statute relates to matters covered in whole or
in part by a prior statute does not cause a repeal of the older statute. If
two statutes may operate upon the same subject without positive
inconsistency or repugnancy in their practical effect and consequences,
they should each be given the effect designed for them, unless a contrary
intent clearly appears.
State v. Gadsden County, 58 So. 232, 235 (1912).
The two subsections involved in the instant case can be read so that they are not
inconsistent. That is, the 60-day G.E.D. statute cannot cause an inmate to serve less
than 85% of a sentence; in all other cases, the FDOC has discretion to grant the
educational gain-time award.
We, therefore, hold that the FDOC’s conclusion that it is entirely without
authority even to consider the 60-day educational gain-time award for inmates whose
offenses were committed on or after October 1, 1995, was erroneous. Although the
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ultimate decision of whether to grant the 60-day award is discretionary and subject to
the 85%-of-sentence requirement discussed in subparagraph 944.275(4)(b)3, the
FDOC had a ministerial duty to consider the request and at its discretion, either grant
or deny it.
Accordingly, we GRANT the petition for writ of certiorari, QUASH the order of
the lower tribunal denying petitioner’s petition for writ of mandamus, and REMAND
for further proceedings consistent with this opinion.
PETITION GRANTED; REMANDED.
WOLF, B.L. THOMAS, and KELSEY, JJ., CONCUR.
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