                                         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.,

                                           4
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.
                                            5
(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

                                           6
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


                                            7
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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