SC96176 Richard Westberry v. Michael W. Moore

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State: Florida

Court: Supreme Court

Docket No: sc96176

Case Date: 11/09/2000

Plaintiff: SC96176 Richard Westberry

Defendant: Michael W. Moore

Preview:Supreme Court of Florida
No. SC96176
RICHARD WESTBERRY,
Petitioner,
vs.
MICHAEL W. MOORE,
THE FLORIDA DEPARTMENT OF CORRECTIONS,
and
THE FLORIDA PAROLE COMMISSION,
Respondents.
[November 9, 2000]
PER CURIAM.
Richard Westberry petitions this Court for writ of habeas corpus.  We have
jurisdiction.  Art. V, § 3(b)(9), Fla. Const.
FACTS
In 1989, Westberry began serving an overall ten-year sentence for criminal
offenses committed in 1987 and 1988.  Westberry was awarded both Provisional
Credits and Control Release Credits and accepted early release under the Control

Release program in 1991.  Westberry violated his Control Release and was returned
to prison in 1997.  All his previously awarded “regular” gain time (Incentive Gain
Time and Basic Gain Time) and his overcrowding credits (Control Release Credits
and Provisional Credits) were forfeited.  Westberry subsequently filed a petition for
writ of habeas corpus in this Court arguing that his case was similar to the inmate’s
case in State v. Lancaster, 731 So. 2d 1227 (Fla. 1998) (State could not forfeit
overcrowding credits because inmate’s offense had been committed prior to
October 1, 1989, when the relevant forfeiture provision went into effect).
Westberry argued that since his underlying criminal offense, like Lancaster’s, was
committed prior to October 1, 1989, the State could not forfeit his regular or
overcrowding gain time.
ANALYSIS
We conclude that Westberry’s case is not similar to Lancaster’s case.
Lancaster concerned the forfeiture of gain time upon probation revocation.  Since
the statutory authority for gain time forfeiture upon probation revocation did not go
into effect until October 1, 1989, it could not be applied to Lancaster, whose
offense was committed prior to that date.
Westberry’s case concerns forfeiture of gain time upon Control Release
revocation (not probation revocation).  As explained in Bowles v. Singletary, 698
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So. 2d 1201 (Fla. 1997) (allowing forfeiture of “regular” gain time upon Control
Release revocation), and Lewis v. Moore, 753 So. 2d 1242 (Fla. 2000) (allowing
forfeiture of Control Release Credits upon Control Release revocation), although
the Control Release gain time forfeiture authority went into effect on September 1,
1990, since inmates whose offenses were committed prior to that date were given
the option to accept or reject early release on Control Release, such inmates waived
any ex post facto claim they might have had.
Even though Lewis spoke only of the overcrowding gain time known as
Control Release Credits and Westberry lost two different types of overcrowding
credits (Provisional Credits and Control Release Credits), the reasoning of Lewis
applies equally to both.  This Court has already stated in State v. Lancaster, 731
So. 2d 1227, 1230-31 (Fla. 1998), that since the relevant forfeiture provisions
provide for the forfeiture of “all gain time” and Provisional Credits are merely
another type of overcrowding gain time, they are forfeitable under the same
provisions as those at issue in Lewis.1   Therefore, logically, Westberry waived any
ex post facto claim he may have had for any overcrowding gain time (including
both Provisional Credits and Control Release Credits) when he accepted early
release under the Control Release program.  Therefore, we deny the instant petition
1See §§ 944.28(1); 947.141(6), Fla. Stat. (1999).
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for writ of habeas corpus.
It is so ordered.
WELLS, C.J., and SHAW, HARDING, ANSTEAD, PARIENTE, LEWIS and
QUINCE, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
Original Proceeding - Habeas Corpus
Richard Westberry, pro se, Okeechobee, Florida,
for Petitioner
Louis A. Vargas, General Counsel, and Sharon L. Wells, Assistant General Counsel,
the Florida Department of Corrections, Tallahassee, Florida; and William L. Camper,
General Counsel, and Kim M. Fluharty, Assistant General Counsel, the Florida Parole
Commission, Tallahassee, Florida,
for Respondent
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