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.”



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