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Florida Gain Time Law Application Violates Ex Post Facto Clause

Florida’s First District Court of Appeal has held that application of a 1983 gain time statute to a prisoner who committed his offense in 1981 violated the ex post facto clause. Before the appellate court was a petition for writ of certiorari filed by Florida state prisoner Reginald Burks.

After his parole was revoked, the Florida Department of Corrections (FDOC) forfeited all the basic gain time that Burks had earned prior to parole. Burks contended that the FDOC’s application of the 1983 version of § 944.275, Florida Statutes was disadvantageous to him.

That statute awards basic gain time. Under the 1983 version, it awards a lump sum of 10 days a month for each month served on a sentence, or one-third off. Under the prior version of the statute in effect at the time of Burks’ offense, basic gain time was earned under a 3-6-9 formula on a monthly basis. According to the FDOC’s pre-1983 rules, the gain time was to be awarded or withheld monthly, rather than as a lump sum under the current version of the law.

The Court of Appeal granted the certiorari petition, finding that the FDOC’s application of the gain time statute in this case adversely effected Burks. The matter was remanded to determine what amount of basic gain time should be forfeited under the 1981 statute. See: Burks v. McNeil, 984 So.2d 619 (Fla. Dist. Ct. App. 1st Dist. 2008).

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Related legal case

Burks v. McNeil