Rejecting longstanding legal precedent, a state appeals court said Friday that a man convicted of attempted sexual battery on a child is eligible to be considered for early release from prison.
Judge Adam Tanenbaum, in a 22-page majority decision, said state law bars gain time for people convicted of committing sexual battery — but not, as in the Gould case, for attempted sexual battery. Inmates may receive gain time based on factors such as their behavior and taking part in work and programs.
Tanenbaum also wrote that the Tallahassee-based appeals court was backing away from what he called “a plainly incorrect legal principle regarding Florida’s general criminal attempt statute” in rulings dating to 1996 and 2001.
“Gould has a clear right to consideration for the award of incentive gain-time,” Tanenbaum wrote in an opinion joined fully by Chief Judge Lori Rowe and Judges Brad Thomas, Clay Roberts, Stephanie Ray, Timothy Osterhaus, Thomas Winokur, Harvey Jay, M. Kemmerly Thomas, Rachel Nordby and Robert Long. “There is no statutory preclusion. The department in turn is required to exercise its discretion on that question.”
I was convicted in 1998 and given 8 years with no probation afterwards. I got one year two months gain time for good behavior. The only thing is when I was released that whole good behavior time was transferred to parole and I had to wear an electronic monitor the whole time. So I was kind of released early but it was still under the thumb of the parole office.
Ok. Now I am confused as well. The way the top reads, the judge implied that no sex offender convicted of sexual battery is eligible for gain time. But, in my experience, that is simply not true. I got gain time. All three of my tenants got gain time. My new tenant is getting out with gain time. Everyone I know with a sex charge–battery or not–received gain time, unless they were sentenced to a “mandatory minimum”.
Did I miss something?
By the way, I agree, the legislature will likely try to close this up, but that will simply set up a long legal fight about the constitutionality of unequal treatment between different crimes.
I don’t know if anyone has seen this new Florida Justice reform post, but once again the author doesn’t seem to have a problem with excluding our population like they did for restoring voting rights:
I’m confused, where does it say that?
“To handle the risk factors of parole, Florida could exclude sexual and child-related crimes from eligibility, like Tennessee.” In the linked article on Twitter.
Ah, thank you very much.
No worries. It was hard to find!
So, being pre-october 1995, could this mean registration isn’t required of i pled no contest to attempted cap. Sex . Batt. in order to be able to see my family again someday? I ended up doing 7 years.
I had to laugh (inconspicuously, of course) and
when I was back in court once and a new judge and ASA were discussing my sentencing while I was standing there. They were aghast that they’re were no points scored for penetration (which was never even alleged). Idiots. If there’d been penetration, it wouldn’t have been attempted. Registration wasn’t in my CONTRACT with the state. (Then again, neither was anything the state’s passed into law since then. CONTRACT VOIDED! with no harm to the adhering party!)
I wonder if this will apply to any other way this “Attempt” charge is applied? I recieved a “Attenpt S Batt Charge” for a Bogus alleged dressed grope! And was forced to take a plea with the usual fear and threat of never seeing my Family again. Was told it was the lowest they would go yet still a 3rd degree Felony. Other states at best was a Misdemeanor. The application of Attempt in Florida never made sense to me as anything they say you could do but didnt was a attempt!.
“Perpetrating an error in legal thinking under the guise of stare
decisis serves no one well and only undermines the integrity and
credibility of the court.” (quoting Smith v. Dep’t of Ins., 507 So. 2d
1080, 1096 (Fla.1987)”
Let’s see if we can convince SCOTUS that the decision in their “Smith” case is also an “error in legal thinking under the guise of stare
decisis (that) serves no one well and only undermines the integrity and
credibility of the court”.
If the leaked draft decision in the Mississippi abortion case is any indication, the current court may be more willing to disregard stare decisis than were previous courts. Whether or not that would be applied to sex offense cases is a different question. We’ve all seen how prejudice often makes for bad law.
Any bets on how long before the Florida legislature and Ron DeSantis pass legislation to preclude attempted sex crimes from ‘gain time’? We may be looking at redefining the nanosecond.
Before the end of summer wouldn’t surprise me. Certainly by the end of the year.