After Florida Appellate Court Holds Crimes of ‘Attempt’ Eligible for Incentive Gain Time, Supreme Court Refuses Review
by Kevin W. Bliss
On November 14, 2024, Florida’s Supreme Court dismissed an appeal by officials with the state Department of Corrections (DOC) to an appellate court ruling that exempted crimes of “attempt” from those that ban prisoners from being considered for incentive “gain time” sentence credits.
At issue was a ruling by the state’s First District Court of Appeal (DCA) on June 10, 2022, which rejected long-standing legal precedent to affirm that state prisoner McMillan Gould should have an opportunity to be considered for incentive “gain time” despite his conviction for attempted sexual battery on a child. In its ruling, DCA said that the statutory definition of “attempt” makes the conviction a completely separate offense from sexual battery on a child for which state law bars “gain time.”
Gould’s 2016 no-contest plea resulted in a 25-year sentence to which DOC refused to consider granting any gain-time credit. He then filed a mandamus action, which a trial court approved before DOC filed for a writ of certiorari from DCA to hear its appeal. That court then began by ruling DOC’s motion could not be treated as one for certiorari, since Gould’s mandamus action questioned DOC’s discretion to consider him for incentive gain time and not his entitlement to receive it. The subtle distinction allowed for the certiorari petition to be treated as a direct appeal. Reviewing the proceedings anew, DCA gathered its full 15-judge panel en banc because the issue was “necessary to maintain uniformity in the court’s decisions.”
In rulings from 1996 to 2001, DCA held that attempt crimes under Florida law are crimes under the substantive criminal statute. But Judge Adam Tanenbaum, writing for the majority agreeing with Gould, said it was necessary for DCA to recede from its earlier position. The state’s “gain time” statute, F. S. § 944.275, grants consideration for any prisoner not in “violation of” certain statutes such as sexual battery (F. S. § 794). But the “attempt” statute specifically calls it a “failure” to perpetrate that crime. Therefore, by definition, it is not a violation of that crime; rather, it is an “offense separate from the offense attempted,” the majority said.
Judge Scott Maker, writing for himself and two other judges in the minority, called the majority’s decision “an unprompted cannonball dive into a long-placid wading pool.” Fellow dissenting judge Ross Bilbrey also pointed to the long lapse since the 2001 precedent that the Court was upending. Had state lawmakers disapproved of that decision, he asked, why hadn’t they done anything to change the law since then?
The majority countered that if the Legislature wished to include attempt convictions among those ineligible for incentive gain time, it could have done so; the statute criminalizing sexual battery (F. S. § 794.011), for example, specifically includes attempted sexual battery (F. S. § 774.04) resulting in injury to the sex organs. Thus, the lower court’s decision was affirmed by DCA. Gould was represented in his appeal by Orlando attorney Terrence E. Kehoe. See: Fla. Dep’t of Corr. v. Gould, 344 So. 3d 496 (Fla. 1st DCA 2022).
That is the ruling that was then left to stand by the Florida Supreme Court. After accepting the case for review in December 2022, it then took nearly two years to decide simply to discharge jurisdiction and dismiss the state’s appeal—over the objection of dissenting Justice Jamie R. Gorsshans, with whom Justice John D. Couriel concurred. See: Fla. Dep’t of Corr. v. Gould, 49 Fla. L. Weekly 275 (2024).
Additional source: ALM Media
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