Opinion
Case No. 1D01-3205.
Opinion filed August 2, 2002.
Petition for Writ of Certiorari — Original Jurisdiction.
Johnny Bolden, pro se.
Carolyn J. Mosley, Assistant General Counsel, Department of Corrections, Tallahassee, for Respondent.
Johnny Bolden, an inmate in the Florida Department of Corrections, has petitioned this court for a writ of certiorari to review an order denying his petition for mandamus, which sought recalculation of his release date. We review the petition pursuant to Sheley v. Florida Parole Commission, 703 So.2d 1202 (Fla. 1st DCA 1997), approved, 720 So.2d 216 (Fla. 1998), and grant the petition.
Petitioner Bolden was convicted of second-degree-felony aggravated battery, possession of a short-barreled shotgun, and felonious possession of firearms, and third-degree-felony aggravated assault in connection with an incident that occurred on December 21, 1992, and he was sentenced on April 27, 1993, to four concurrent ten-year terms. The sentences for aggravated assault, aggravated battery, and possession of a short-barreled shotgun were imposed under the habitual felony offender (HFO) statute, and Bolden was subject to conditional release supervision for those three sentences pursuant to section 947.1405, Florida Statutes (1991). The release date for the shotgun sentence was earlier than that for the aggravated battery and assault sentences, because Bolden was eligible to receive incentive gain time while serving the five-year minimum on that conviction, but not while serving the three-year minimums for the assault and battery crimes. See §§ 775.084(4)(e), 775.087(2)(a) 790.221(2), Fla. Stat. (1991).
Section 947.1405 provides in pertinent part:
(2) Any inmate who . . . is sentenced as a habitual or violent habitual offender pursuant to s. 775.084 shall, upon reaching the tentative release date or provisional release date, whichever is earlier, as established by the Department of Corrections, be released under [control release] supervision[.]
The length of control release supervision is equal to the amount of gain time the inmate has accrued prior to release. See Evans v. Singletary, 737 So.2d 505, 507 (Fla. 1999).
The Department of Corrections calculated the April 25, 1999, release date for the short-barreled shotgun sentence based on the sentencing date of April 27, 1993, as follows: 127 (jail credit) + 1,334 days (gain time) + 2,189 (time served) = 3,650 days (10 years). Had this been Bolden's only sentence, he would have been released on April 25, 1999, into the conditional release program for a period of time equal to the amount of gain time awarded (1,334 days). The two sentences for aggravated battery and assault, however, had to be served before he could be placed on conditional release. Those two sentences were calculated to end on March 27, 2000, as follows: 127 days (jail credit) + 997 days (gain time) + 2,526 (time served) = 3,650 days (10 years). Therefore, the commencement of Bolden's conditional release supervision on the short-barreled shotgun crime was delayed 337 days from April 25, 1999, until March 27, 2000, when he was released on supervision for the other two crimes.
Bolden's supervision was revoked after 236 days on November 18, 2000, and he was returned to prison. In determining the new release date, the Department considered that Bolden had 1,334 days to serve on the short-barreled shotgun sentence and 997 days on the aggravated assault and battery sentences, with credit for one day of time served awarded by the Florida Parole Commission (FPC). The Department calculated Bolden's new tentative release date of March 11, 2004, based upon the short-barreled shotgun sentence, beginning on the original date of sentencing, April 27, 1993, as follows: 3,650 days (10 years) + 337 days (time tolled in prison) + 236 days (time tolled out of prison) — 127 days (jail credit) — 1 day (FPC credit) — 1,334 days (gain time previously awarded) + 1,334 days (forfeited gain time due to conditional supervision revocation) — 124 days (gain time awarded since return to prison).
The Commission has broad authority to grant or deny credit for time spent on supervision upon revocation. See Rivera v. Singletary, 707 So.2d 326, 327 (Fla. 1998).
Bolden filed a petition for writ of mandamus, wherein he complained that his only time out of prison was 236 days, and the Department had erred by adding 337 days of time tolled in prison, for a total of 573, to his ten-year sentence.
The addition of 236 days for time spent out of prison is correct, as that simply extends the release date by the number of days that Bolden was on supervision. See Rivera.
The Department filed a response, explaining that when an inmate has multiple sentences that end at different times, the inmate must wait until all sentences are served before starting conditional release supervision and that the term of supervised release is tolled while the inmate remains in prison on an unrelated sentence. If conditional supervision is revoked, the inmate's new release date will be extended by the number of days the inmate was out of prison, plus the number of days the inmate was in prison serving another sentence. The circuit court agreed with the Department and denied Bolden's petition based on Evans v. Singletary, 737 So.2d 505 (Fla. 1999).
In Evans, the inmate was due to be released on a sentence subject to the conditional release program before he was eligible for release on a sentence that was not subject to the program. The question before the court was whether the Department could transfer the conditional release supervision from the expired sentence to the end of the longer, ineligible sentence and then toll the beginning of the supervision period until the inmate had been released from prison. In upholding the Department's actions, the court found legitimate authority for tolling the supervision period while the inmate remained in prison on unrelated, uncovered offenses. The court explained that requiring these more at-risk offenders to serve their conditional release supervision in prison would not make any sense, and that tolling the supervision until the inmate is released from prison is the most logical choice. The court thus held that the Department "may use an unexpired Conditional Release-eligible sentence to determine the length of the supervision and then toll the running of that supervision period until the inmate has been released from prison." Id. at 508-09.
We consider Evans to be inapplicable to the facts in this case. This is not a situation, as in Evans, where the noncovered sentence has a release date later than the covered sentence. Under those facts, one can understand why the court permitted the commencement of the supervision to be tolled and why it stated: "Allowing Evans to receive credit toward his supervision for the time he was in prison serving a completely different sentence would be contrary to logic and would result in an undue windfall for Evans." Id. at 508. The court's reasoning reflects the purpose of the conditional release supervision program, which is to ensure that there is additional post-prison supervision for these more at-risk releasees. Id.; Rivera v. Singletary, 707 So.2d 326, 327 (Fla. 1998). In the instant case, however, all three sentences involved are subject to conditional release supervision.
Moreover, Evans does not address recalculation of a release date following revocation of conditional release, and nothing in Evans states that upon revocation of conditional release, the tolled supervision period should also be added into the new release date calculation.
In addition, we find no statutory support for the Department's calculation. The statute governing revocation of conditional release, section 947.141, Florida Statutes (1991), makes no mention of tolling or adding supervision time into the new release date calculation. Rather, it simply states that the releasee forfeits "all gain-time or commutation of time for good conduct." What the Department is essentially doing in this case is using the forfeited gain time from the sentence that has the largest amount of accumulated gain time (short-barreled shotgun at 1,334 days rather than aggravated assault and battery at 997 days each), and attaching that larger amount of forfeited gain time onto the longest incarcerative sentences (the aggravated battery and assault sentences), thereby causing Bolden's overall sentence to exceed ten years.
Review of the numbers illustrates this error in the Department's calculations. Bolden's incarceration on the ten-year sentences prior to the conditional release revocation was 2,653 days (127 days of jail credit + 2,526 days time served on the longest sentences) or 7.3 years. Under the Department's calculations for his new release date, he will serve an additional 1,334 days or 3.7 years if the largest amount of forfeited gain time is considered, which causes his sentence to consist of 3,987 days and to exceed 10 years (7.3 + 3.7 = 11 years). If the lesser amount of forfeited gain time is used, then the remaining sentence is 997 days or 2.7 years, which, when added to the prior incarceration of 2,652 days or 7.3 years equals 3,650 days or 10 years. Moreover, by adding 337 days for supervision that was supposedly tolled while Bolden was completing the other two sentences, the Department has increased Bolden's sentence by 11 months. See Moore v. Pearson, 789 So.2d 316, 319 (Fla. 2001) ("DOC violates the separation of power doctrine when it refuses to carry out the sentence imposed by the court."). Therefore, we conclude that the trial court departed from the essential requirements of law.
We find that when an inmate is serving conditional release sentences that control the release date, those sentences should be considered as a whole, and the supervision should commence when the longest incarcerative sentence is satisfied and the length of supervision should be calculated based on the gain time applicable to that particular sentence.
The petition for writ of certiorari is therefore
GRANTED.
ALLEN, C.J., and KAHN, J., CONCUR.
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED.