Sutton v. State
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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
January Term 2008
WILLIAM J. SUTTON,
Appellant,
v.
FLORIDA PAROLE COMMISSION, STATE OF FLORIDA,
Appellee.
No. 4D07-3653
[March 12, 2008]
FARMER, J.
We grant appellant’s motion for rehearing and thus withdraw our
previous opinion affirming the decision of the trial court without
prejudice to pursue administrative remedies. The issue presented by
this appeal turns out to be both novel to this court and significant. And
a proper understanding of the case requires some context and history.
According to a popular TV series, the criminal justice system is
divided into “two separate but equally important groups” — which it
identifies as the police and the prosecutors. Actually that description
applies only to the first half of the system, the one involved in
establishing the guilt of an accused. After he is found guilty, there is yet
another systemic division.
This one deals with the imposition of
punishment by a court, and then with the executive branch prison
system administering the punishment imposed by the court so that the
prisoner is released when his punitive debt has been fully satisfied.
The judge who imposes the punishment and the prison official who
administers that punishment are governed by constitutional and
statutory requirements. The judge may impose punishment no more
severe than the law allows. In turn, prison officials must enforce the
actual sentence imposed but may not administer that sentence in a way
that would increase the punishment beyond what the court imposed.
Prisoners are entitled to have the judicial system review the imposition
and administration of their punishment in compliance with these laws.
This case involves the administration of punishment and an issue of
timely release when the sentence has expired.
Some history is necessary to illuminate the problem raised. Twenty
years ago, Florida’s sentencing laws allowed prisoners to accumulate
substantial gain time against the sentence imposed by the court. When
the time actually served plus their accumulated gain time equaled their
sentence, they would be given an early release if there had been no
prison misconduct.1 The early release was unconditional and without
any supervision. In 1988, however, the Legislature ended unconditional
early release and imposed supervision and conditions in the Conditional
Release Program Act (CRPA).2 Under the new law, the prisoner’s accrued
gain time could still allow early release, but he would now remain under
the supervision of the Florida Parole Commission, which could impose
specified conditions on him.3 If while on early release the prisoner
violated one or more conditions, the Commission could return him to
prison, take away the accrued gain time, and restore the balance of the
sentence existing when he had been given early release.
Meanwhile, the Legislature began enacting new punishment laws,
culminating in 1995 legislation significantly reducing the accumulation
of gain time, as it had been employed until then. Henceforth, prisoners
would be required to serve at least 85% of the actual sentence imposed
no matter how much gain time they might accumulate.4 Nevertheless
substantial numbers of prisoners could still earn some form of early
release.
Then for one class of prisoners, a new law curtailed actual release
from prison at the expiration of a sentence. In 1998, the Legislature
enacted the Jimmy Ryce Act (JRA) providing for the indefinite civil
commitment of unreformable sex offenders after they had completed
their prison sentence. For these prisoners, there would be no release
from confinement, early or otherwise. When their sentence was fully
served they would simply pass from criminal to civil confinement.
Chet Kaufman, A Folly of Criminal Justice Policy-Making: The Rise and
Demise of Early Release in Florida, and Its Ex Post Facto Implications, 26 FLA.
ST. UNIV. L. REV. 361, 377 (1999). Owing to the former gain time laws,
prisoners were serving little more than 40% of their actual sentences. Id. at
385.
2 See Ch. 88-122, § 19, Laws of Fla.; § 947.1405, Fla. Stat. (2007).
3 The length of conditional-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).
4 § 944.275(4)(b)3, Fla. Stat. (2007).
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JRA requires the Department of Corrections to give the Commission
early notice when a sexual offender is eligible for release from prison.
Before a sexual offender is released, the Department must inform the
State Attorney who may then file civil commitment proceedings under
JRA. If a trial judge finds probable cause that the prisoner meets the
requirements of JRA, he is transferred from confinement with the
Department to confinement in another state facility pending a final
determination under JRA.
Then if the jury in the JRA case finds the prisoner likely to commit
new sex offenses, his civil commitment formally becomes indefinite. On
the other hand, if the prisoner’s sentence is fully expired and he is
acquitted by the jury in the JRA case or the State dismisses it, he may
have his liberty. But when, as here, the prisoner is given conditional
early release under CRPA and a case is simultaneously brought under
JRA but the JRA case ends in the prisoner’s favor, there is some question
as to whether or when he can have his liberty.
This last scenario involves the Commission’s policy for early release of
sex offenders under CRPA who are also brought under JRA. If the JRA
case ends in favor of the prisoner, the Commission may charge him with
violating the conditions of his release during his JRA commitment. If the
Commission finds that he violated the CRPA conditions during the JRA
proceedings, the Commission will revoke his conditional release, take
away all the gain time, and re-impose the unserved balance of his
sentence.5
The prisoner in this case is one of those given early release and
simultaneously brought into proceedings under JRA. He had begun
serving his 15-year sentence in July 1994. On account of accumulated
gain time, by April 2000 he was entitled to early release under CRPA.
Acting together, the two separate state authorities coordinated both an
early conditional release under CRPA and also started JRA proceedings
against him. The trial court found probable cause under JRA and
committed him to civil confinement pending a final JRA determination.
Instead of being released from confinement, he was thereupon simply
transferred from his prison to a JRA facility operated by the State of
Florida.
The record given us at this point does not contain a full account of
events in the JRA case. It does show that on three occasions he was
This procedure has been upheld in David v. Meadows, 881 So.2d 653 (Fla.
1st DCA 2004).
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brought from the JRA confinement facility in Martin County into the
circuit court in Palm Beach County for a hearing. There is no indication
as to what happened in any of these hearings. It is nonetheless clear
that, after confining him in a JRA facility for more than four years, in
June 2004 — again in coordinated proceedings — the State Attorney filed
a voluntary dismissal of the JRA case while the Commission moved to
revoke his conditional release. When the State dropped the JRA case it
merely moved him back to his prison without counting against his
sentence the four-year long JRA hold. In spite of being given “early
release” as a result of the JRA proceedings he has been uninterruptedly
imprisoned from the time sentence was imposed.
Obviously the
dismissal of the JRA case is a functional concession that the State has
no legal basis to confine him beyond the 15-year sentence.
In moving to revoke his conditional release, the Commission charged
him with refusing to participate in a sex offender treatment program
while confined at the JRA facility and to submit to a drug test ordered by
his supervising officer. He responded that his refusals were on advice of
counsel, that his attorney told him that if he participated in a treatment
program during the JRA confinement he would thereby waive any right
to confidentiality in statements made to any person for such treatment.
According to that advice, his statements would be used against him in
the trial on the JRA claim to confine him indefinitely. In other words, he
was given to understand that by participating in treatment and drug
testing during the JRA case he would be furnishing the state with
evidence to be used to confine him perhaps for the rest of his life.
The Commission’s revocation charge was administratively tried before
a Parole Examiner. She found that he violated conditional release by
refusing sexual offender treatment and drug testing in the JRA case. At
the same time, she also found that that his refusal was “clearly” based
on legal advice by counsel, that his non-compliance was based upon his
desire “to do the right thing” and not out of any desire “to break the
rules.”
Accordingly, the Parole Examiner recommended that his
conditional release be reinstated. Despite the recommendation, however,
the Commission entered an order revoking release and denying any
“award of credit for time on Conditional Release” in the JRA case. It does
not appear that he ever sought judicial review of the Commission’s
revocation or the consequent refusal to credit the JRA confinement.6
We cannot but express our concern that this prisoner’s counsel did not
seek review of the Commission’s decision. He was entitled to counsel during
the JRA proceedings and to seek review of the decision to revoke his conditional
release. See Shuman v. State, 358 So.2d 1333, 1335 (Fla. 1978) (involuntary
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After serving three more years of imprisonment since the FPC decision
terminating early release, he has now filed the present motion under rule
3.800(a) to correct what he describes as an illegal sentence. His motion
states that he seeks to have the period between 26 April 2000 and 3
June 2004 counted against the 15-year sentence (less 469 days of jail
credit) imposed on 7 July 1994. He further states that if this period were
properly counted against his sentence, he will be entitled to release from
prison on 25 March 2008.7
On the other hand, he explicitly disclaims habeas corpus, explaining
that he is not today asking for immediate release. Similarly, he disavows
treating this appeal of the denial of relief under rule 3.800(a) as review of
a denial of habeas corpus. He argues instead that rule 3.800(a) allows
him “to move to correct an illegal sentence ‘at any time’ and does not
require him to wait under his sentence has expired before he asks for his
appropriate credit [for] time served.” The issues he raises are: (1)
whether he is entitled to have the time spent in civil confinement under
JRA counted against the 15-year sentence imposed in 1994; and (2)
whether under rule 3.800(a) the court has jurisdiction to grant relief at
this point. The second is antecedent, so we begin with it.
As we observed at the beginning, sentences are imposed by judges,
and any sentence they impose must comply with the body of law. On the
other hand, the sentences they impose must be administered by state
agencies (the Department and the Commission), and these agencies must
also follow the law in carrying out the sentence imposed. Executive
branch officials have no legal authority to change or correct a sentence
imposed by the judge. If there is an error in the sentence as imposed by
the judge, it is the judge who must correct it under rule 3.800(a).
This is by way of explaining that rule 3.800(a) is designed for judges
to correct an improperly imposed sentence. It is not intended to remedy
later errors by the agencies charged with administering the sentence
commitment to a mental hospital, like involuntary confinement of an individual
for any reason, is a deprivation of liberty which the State cannot accomplish
without due process of law). The failure to seek review appears prima facie
ineffective assistance of counsel. We note that the able Assistant Public
Defender now representing him was not involved in the revocation proceedings,
which were conducted in the Twelfth Circuit, Desoto County.
7 Fifteen years from 7 July 1994, minus the 469 days of pre-conviction jail
credit (and without gain time of any kind), means that his sentence will have
been fully served on 25 March 2008.
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imposed.
If the agency incorrectly administers a sentence legally
imposed so that the prisoner spends more time in prison than the
sentence provides, his remedy is within the agency first and, if not
corrected by the agency, on judicial review by extraordinary writ.
In this case, the prisoner did not appear to have timely sought judicial
review of the Commission’s decision revoking his early release and
denying him credit for the time under JRA. Instead, three years after the
fact, he has belatedly filed this rule 3.800(a) motion to remedy the way
the Department and the Commission are administering his legal
sentence. His motion does not claim that the 15-year sentence imposed
by the judge for his crime is invalid or needs correcting. He challenges
only the manner in which the 15-year term is being counted or
administered.
He cannot use rule 3.800(a) for this purpose. See Smith v. State, 682
So.2d 147 (Fla. 4th DCA 1996) (failure of the Department to credit
unforfeited gain time does not make sentence allowing credit for prison
time illegal; prisoner’s remedy is not under rule 3.800 but by writ of
mandamus); Dep’t of Corrections v. Mattress, 686 So.2d 740 (Fla. 5th
DCA 1997) (award of credit to sentence by the Department does not
affect legality of sentence; judicial remedy is solely by mandamus);
Robinson v. State, 818 So.2d 543 (Fla. 2d DCA 2002) (claim that the
Department awarded less credit than provided in sentence cannot be
brought under rule 3.800(a) but must instead be made by mandamus).
Because he concedes that his sentence was legal when imposed, his
remedy for the unlawful administration of his sentence is within the
agency, whose decision may then be subject to judicial review by
appropriate writ.
When he failed to seek timely review of the
Commission’s revocation of early release by extraordinary writ, he gave
up any remedy for the denial of early release until he is entitled to
immediate release at the end of his sentence.
His circumstance should be compared with Martin v. Florida Parole
Commission, 951 So.2d 84 (Fla. 1st DCA 2007). That prisoner’s claim
resembles this one, except for the question of immediate release. He too
had been given early release, later revoked by the Commission. He
challenged the revocation by habeas corpus, but the trial court held that
his remedy was by certiorari because he was seeking review of the
agency’s decision. On appeal the district court reversed, finding habeas
appropriate because he was seeking immediate release. The court also
held that the one-year time limit on seeking review of such action was
not applicable because there can be no statutory time bar to seeking
immediate release under habeas corpus.
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Here the prisoner disclaims immediate release, even though he does
make plain that his true release date is imminent. His circumstance is
thus like the prisoner’s in Cooper v. Florida Parole Commission, 924
So.2d 966 (Fla. 4th DCA 2006), review pending, No. SC06-1236 (Fla.
June 21, 2006). There the prisoner challenged the revocation of his early
release by filing a petition for habeas corpus but did not claim
entitlement to immediate release. We held that his remedy was to
petition for mandamus to correct the agency’s interpretation of the
statute and that mandamus relief was covered by the one-year time
limitation of section 95.11(5)(f), rather than rule 9.100(c)(2). We also
made clear that habeas corpus was not available at that point because
he did not seek immediate release. Plainly, the prisoner in this case is
also seeking judicial review of the three-year old Commission decision to
deny him credit against his sentence for the time he was confined under
JRA. As in Cooper such a claim is covered by the one-year statute of
limitations on prisoner petitions for extraordinary writs not challenging a
conviction.
At this point, we could pass from this issue without addressing the
whole purpose of his resort to court — that under the law he is entitled
to count the JRA confinement against his prison sentence. But the
parties have fully briefed that claim on the merits, and both seek a
decision. Because the issue has obvious and important application for
those who administer the system and those most affected by their
decisions, we choose to address the issue and say what the law is.
In claiming credit for the JRA time, the prisoner stands on Tal-Mason
v. State, 515 So.2d 738 (Fla. 1987). There, a defendant was arrested,
charged with murder, found incompetent to stand trial, and held for 5½
years in state mental institutions before becoming competent to face the
charges. Being sentenced to prison upon his plea, he was thereupon
denied credit for the time spent in the mental institutions. The Supreme
Court held that it was error to deny him credit. The court explained:
“Tal-Mason clearly had no choice when he was confined in a
state mental institution. He entered into no agreement with
the state to obtain an early release from confinement or from
any other punishment less restrictive than jail time. Rather
than increasing his liberty, Tal-Mason’s confinement was in
the strictest sense a complete deprivation of liberty. He was
in the total custody and control of the state at all times. And
while his confinement involved psychological treatment, the
primary purpose of both the treatment and the detention
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was to hold Tal-Mason until such time as he became
competent to stand trial, if ever. Thus, his coercive
commitment to a state institution was indistinguishable from
pretrial detention in a ‘jail,’ as that term is understood in
common and legal usage.”
515 So.2d at 739. The court agreed that “there is ‘no meaningful
distinction ... between incarceration before trial in a county jail, and
state enforced confinement in a mental hospital in preparation for trial.’ ”
515 So.2d at 740. The court further noted that:
“[defendant] was not free on bail, had no control over his
place of custody and was never free to leave the hospitals.
For all practical intents and purposes, he was still in jail.
The court takes judicial notice that the state mental
hospitals have the facilities to enforce confinement of their
patients, which brings them within the dictionary definition
of a ‘jail.’ ”
Id. The court went on to hold that it could not agree that credit against a
sentence was strictly limited to institutions formally designated as jail.
Sutton argues there is no meaningful factual distinction between TalMason and the facts of his case. He had no choice when, under JRA, he
was confined like a prisoner but in a state mental institution. He entered
into no agreement with the State to obtain early release or from any other
punishment less restrictive than jail time. Rather than increasing his
liberty, his confinement was in the strictest sense a complete deprivation
of liberty. He was in the total custody and control of the state at all
times.
His coercive commitment to a state institution cannot be
distinguished from detention in a jail or a prison. He was not free on
bail, had no control over his place of custody, and was never free to leave
the facility in which he was detained under JRA. For all practical intents
and purposes, he was still being held in prison under the JRA law.
In upholding the constitutional validity of JRA in State v. Goode, 830
So.2d 817 (Fla. 2002), the court repeatedly emphasized that:
“the Legislature intended that ordinarily the review process
of potential sexual predators would be concluded while the
person was still in prison. The initial ex parte probable cause
determination … applies primarily to respondents who are
still in prison, and a finding of probable cause under this
provision simply requires that a respondent be transferred
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immediately to a secure facility upon the expiration of the
sentence.”8
830 So.2d at 825. If the intent of JRA is that its essential fact be
determined while the prisoner is still serving the sentence for the crime,
it is obvious that the Legislature did not intend for JRA proceedings to
extend or enlarge the criminal penalty. Nor, for that matter, do JRA
proceedings subtract from the sentence. In short, JRA was conceived so
that proceedings under its provisions would not affect the administration
of any criminal sentence, and would be completed before the sentence
was completely served, so as not to unconstitutionally extend the
sentence imposed.9
The interplay between JRA and CRPA was the subject of David v.
Meadows, 881 So.2d 653 (Fla. 1st DCA 2004). The issue there was
whether the State could, as here, use CRPA to “release” a prisoner into a
JRA proceeding. The court held that there was nothing in either Act
barring the State from doing so. In so holding, however, the court made
explicit that “[i]n the event that Meadows is found unable to comply with
his release program because of his civil confinement, he should not be
found in violation and should receive credit for the time during
commitment.” [e.s.] 881 So.2d at 655. David v. Meadows explicitly relied
on Tal-Mason to reach that conclusion.
We agree with David v. Meadows. Sutton is entitled to have the JRA
In a footnote, the court pointedly observed:
“We would note that while the Legislature intended that the Ryce Act
operate in this way, there is evidence that in practice this is not occurring
and that often people are being detained for long periods after their
scheduled release date without being taken to trial. The Florida Legislature’s
Office of Economic and Demographic Research has started releasing
statistics which list the procedural distribution of people in the process of
being committed under the Ryce Act. [c.o.] According to the statistics, the
overwhelming majority of the people currently in the system are detainees
awaiting trial after the expiration of their sentences. While the numbers do
not indicate the cause of the delay, the number of persons being detained
has consistently increased, which indicates that compliance with the thirtyday time limit for trial is rarely being practiced.”
830 So.2d at 825. The extended time periods in this case demonstrate the
continuing accuracy of the court’s observation.
9 Because Goode directly involved JRA, it is apposite authority as to whether
Tal-Mason controls the entitlement to credit for confinement in JRA cases. Gay
v. Singletary, 700 So.2d 1220 (Fla. 1997), did not involve JRA and is therefore
inapt.
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confinement counted against his 15-year sentence. On the other hand,
early release under CRPA is no longer applicable because he did not seek
timely review of the revocation and denial of JRA credit. Instead he now
makes clear that with the JRA time counted against his sentence (along
with the 469 days for jail credit awarded by the sentencing judge) on 25
March 2008 he will have actually served the entire 15-year term “day for
day”, as he puts it.
To be sure, his rule 3.800(a) motion really seeks an anticipatory
ruling that the Department and Commission will not follow the law when
his term finally expires on March 25th. We have now explained what the
law is. As the Supreme Court once said in comparable circumstances:
“There is no showing that [the state agency] will not follow the provisions
of [the law] when petitioner becomes entitled to its benefits; the
presumption is that officers will do their duty as the law directs them.”
Hall v. Mayo, 85 So.2d 592 (Fla.1955). Any habeas corpus claim for
immediate release thus being premature at this time, his appeal must be
affirmed.
STEVENSON and DAMOORGIAN, JJ., concur.
*
*
*
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Krista Marx, Judge; L.T. Case No. 1991CF003456AO2.
Carey Haughwout, Public Defender, Margaret Good-Earnest, Assistant
Public Defender, West Palm Beach, for appellant.
Kim M. Fluharty, General Counsel, Florida Parole Commission,
Tallahassee, for appellee.
Not final until disposition of timely filed motion for rehearing.
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