          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                  _____________________________

                          No. 1D17-3759
                  _____________________________

DOYLE HEARD,

    Petitioner,

    v.

DEPARTMENT OF CORRECTIONS
and the FLORIDA COMMISSION
ON OFFENDER REVIEW,

    Respondents.
               _____________________________


Petition for Writ of Certiorari—Original Jurisdiction.

                         December 14, 2018


PER CURIAM.

     In this certiorari proceeding, inmate Doyle Heard seeks
review of the circuit court’s denial of his petition for writ of habeas
corpus in which he challenged (1) the cancellation of his
overcrowding credits and (2) the calculation of the basic gain-time
(BGT) he forfeited after his parole revocations. Like the circuit
court, we find no merit in either claim. We write only to explain
why the application of the BGT rule in the 1983 version of section
944.275, Florida Statutes, was not an ex post facto violation in this
case.
                                Facts

     In 1981, Heard was sentenced to consecutive prison terms of
15 years for strong-arm robbery and 50 years for kidnapping. The
offenses were committed in 1980.

     In 1987, Heard completed his sentence for strong-arm robbery
and started serving his sentence for kidnapping. The Department
of Corrections awarded Heard a lump sum of 6,000 days of BGT
for this sentence based on the formula in the 1983 version of
section 944.275, Florida Statutes.

     In 1999, Heard was released on parole. After Heard’s parole
was revoked in 2001, the Department forfeited all 6,000 days of
the BGT Heard had been awarded. However, the Department
subsequently “re-audited” Heard’s sentence and reduced the
forfeiture to a prorated amount of BGT attributable to the period
that Heard served in prison prior to his release on parole.

     In 2011, Heard was again released on parole. After Heard’s
parole was revoked in 2014, the Department forfeited the prorated
amount of BGT attributable to the time he served between his
return to prison after his first parole violation and his second
release on parole.

     In 2016, Heard filed a petition for writ of habeas corpus
challenging the Department’s calculation of his sentence. Among
other things, Heard argued that his sentence would have expired
had the Department forfeited his BGT using the formula in the
version of section 944.275 that was in effect in 1980 when he
committed his offenses. The circuit court rejected this and all
other claims raised in the habeas petition. Heard timely sought
review of the circuit court’s decision by filing a petition for writ of
certiorari in this Court pursuant to Sheley v. Florida Parole
Commission, 703 So. 2d 1202 (Fla. 1st DCA 1997).

                               Analysis

    At the time of Heard’s offenses in 1980, BGT was awarded
under the so-called “3-6-9 formula.” This formula provided for a
monthly award of BGT at a rate of 3 days per month for the first

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and second years of the defendant’s sentence, 6 days per month for
the third and fourth years, and 9 days per month afterwards. See
§ 944.275(1), Fla. Stat. (1979).

     In 1983, section 944.275 was amended to provide for the lump
sum award of BGT at a rate of 10 days for each month of the
defendant’s sentence (“the 10-day formula”). See § 944.275(4)(a),
Fla. Stat. (1983); see also Fla. Admin. Code R. 33-603.402(3)(c) (“In
order to establish an initial tentative release date, [BGT] awards
are made in a lump sum upon entry into the [D]epartment’s
custody.”). This new formula was retroactively applied to “all
sentences imposed for offenses committed on or after July 1, 1978.”
§ 944.275(6)(a), Fla. Stat. (1983).

      Heard does not challenge the Department’s use of the 10-day
formula to calculate the award of his BGT. Instead, his challenge
is limited to the use of that formula to calculate the amount of BGT
forfeited after his parole revocations. Specifically, Heard argues
that because the use of the 10-day formula results in the forfeiture
of more BGT than would have been forfeited under the 3-6-9
formula, the retroactive application of the 10-day formula amounts
to an ex post facto violation.

     “Two elements must be present in order for a criminal or penal
law to be ex post facto: (1) the law must be retrospective, that is,
it must apply to events occurring before its enactment; and (2) the
law must disadvantage the offender.” Avera v. Barton, 632 So. 2d
167, 168-69 (Fla. 1st DCA 1994) (citing Waldrup v. Dugger, 562 So.
2d 687, 691 (Fla. 1990)).

     Here, Heard was not disadvantaged by the use of the 10-day
formula to calculate the amount of BGT forfeited because the same
formula was used to calculate the award of BGT and the
Department only forfeited the amount of BGT attributable to the
time served by Heard prior to his releases on parole. The fact that
Heard forfeited more BGT (2,193 days) than he would have
forfeited under the 3-6-9 formula (1,928 days) is not determinative
because he was awarded more BGT (6,000 days) than he would




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have earned under the 3-6-9 formula (5,400 days). ∗ Avera and
Burks v. McNeil, 984 So. 2d 619 (Fla. 1st DCA 2008), are not
contrary authority.

     In Avera, the inmate was sentenced in 1979 to 30 years in
prison. 632 So. 2d at 168. In 1981, the inmate escaped and was
recaptured the same day. Id. The Department retrospectively
applied the 10-day formula to calculate the amount of BGT
forfeited by the inmate. Id. We held that the Department’s
application of the 10-day formula to the inmate in that case was
an ex post facto violation because the inmate would have forfeited
a lesser amount of BGT under the 3-6-9 formula in effect “at the
time of his escape and escape conviction.” Id. at 169.

     Section 944.28(1), Florida Statutes, which provides for the
forfeiture of gain-time if the prisoner escapes or his parole is
revoked, allows the Department to forfeit all gain-time earned
prior to the escape or release on parole. The triggering event for
the forfeiture in Avera was his escape in 1981, and at that time,
the 10-day formula had not yet been enacted. Thus, it was an
improper retrospective application of the law to calculate the
forfeiture under the 10-day formula. By contrast, in this case,
Heard’s triggering events—the revocations of his parole—occurred
long after the 10-day formula was in effect.

     In Burks, the Department forfeited the entire lump sum of
BGT awarded to the inmate under the 10-day formula. 944 So. 2d
at 620. We held this was error because, under the version of
section 944.275 in effect at the time of the inmate’s offense in 1981,
BGT was awarded on a monthly basis. Id. Here, the Department
did not forfeit the entire lump sum of BGT awarded to Heard under
the 10-day formula. Instead, it only forfeited the portion of the
award attributable to the months that he served prior to his
releases to parole. This approach is consistent with Burks.


    ∗
       It is also noteworthy that Heard’s tentative release date
using the 10-day formula to award and forfeit BGT is almost a year
earlier than it would be if the 3-6-9 formula was used to award and
forfeit BGT.

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                           Conclusion

     In sum, because Heard was not disadvantaged by the use of
the 10-day formula to calculate the amount of BGT he forfeited
after his parole violations, the circuit court correctly rejected his
ex post facto claim. Accordingly, the petition for writ of certiorari
is denied on the merits.

    DENIED.

WETHERELL, ROWE, and WINOKUR, JJ., concur.

                  _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Doyle Heard, pro se, Petitioner.

Rana Wallace, General Counsel, and Mark Hiers, Assistant
General Counsel, Florida Commission on Offender Review,
Tallahassee; Kenneth S. Steely, General Counsel, and Gayla
Grant, Assistant General Counsel, Florida Department of
Corrections, Tallahassee, for Respondents.




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