Gain Time in Florida and its Eligibility for Inmates

June 22, 2022 Criminal Defense, News & Announcements, Sex Crimes

A man convicted of attempted sexual battery headed back to the courtroom for an appeal against his initial sentence. McMillan Gould was accused of attempted sexual battery on a child under 12 years old in 2016 and was sentenced to 25 years in prison.

The sentencing document never mentioned the eligibility of gain time, or the possibility of a shortened sentence by showing positive behavior while in prison. Gould has gone back to the courtroom to argue that since he was not convicted of committing sexual battery, just attempted sexual battery, and that he should be eligible for gain time.

We will cover the details of the case, what exactly gain time is in Florida, and the responses to the judges’ decision this last Friday that now allows Gould the ability for early release from prison.

What was the Case?

McMillan Gould was arrested in 2016 for attempted sexual battery on a child. Gould pled no contest, and was sentenced in 2016 to 25 years in prison. Gould proceeded to sue the Leon County Circuit Court for not granting him eligibility for gain time.

The case was pending for three years before the judge finally decided to consider it in 2019. The department took the issues in the case to the appeals court, where it has finally been considered on June 10th, 2022.

The 1st District Court of Appeals drew two dissents for the case. Specifically, to decide if Gould should be eligible for gain time after pleading no contest in his case of attempted sexual battery to a child under 12-years-old.

In the 22-page long majority decision, Judge Adam Tanenbaum stated that the state bars the eligibility of gain time for individuals who have been convicted of committing sexual battery. In Gould’s case, he was convicted of attempted sexual battery.

Former Leon County Circuit Judge Karen Gievers was on Gould’s side, agreeing that the department was required to evaluate the case and consider Gould’s eligibility for gain time. After rejecting the longstanding legal precedent, the state appeals court found that Gould is eligible to be considered for gain time. This means Gould has the possibility of an early release from prison if awarded enough gain time.

Gain Time in Florida

According to the Florida Department of Corrections Office, ‘gain time’ is defined as the opportunity for an inmate to receive a reduction in his or her overall sentence that was imposed by the court. Gain time has been used in Florida since 1889, and its purpose is to encourage positive inmate behavior while using motivating programs and work participation.

Only inmates that are eligible can receive the option of gain time. For example, if the inmate had received a life sentence or a specific mandatory minimum sentence, then they would not qualify for the option of gain time. It is also important to note that just as gain time can be awarded to inmates for satisfactory behavior, it can also be forfeited or withheld from the court.

The following are examples of the different types of gain time:

  • Incentive Gain Time – This form of gain time is awarded to inmates who have shown proof of institutional adjustment, typically through work and participation programs. This type of gain time award is given out on a monthly basis, and the amount of time taken off the sentence varies in relation to the inmate’s performance and adjustment. Depending on when the inmate committed the crime may also have a factor in how many days of gain time they can receive in a month.
  • Meritorious Gain Time – This form of gain time is for an inmate who has committed an outstanding deed. The maximum award time an inmate can receive for a meritorious gain time is 60 days. Examples of an outstanding deed are assisting in recapturing an escaped inmate, saving a life in the prison, or other outstanding services.
  • Educational Achievement Gain Time – This form of gain time is awarded to an inmate for completing a vocational program, and receiving a General Education Development (GED) certificate or diploma. This award is given out on a one-time only basis.
  • Education Gain Time – This form of gain time is awarded to an inmate who completes the Mandatory Literacy Program while in prison. The award is given out on a one-time only basis, granted by the Education Program Manager. The award grants six days of gain time per commitment.

One example of an exception to gain time is the Prison Release Reoffender Punishment Act. This act specifies that an inmate who has committed a specific offense within three years of their first release will not be granted any gain time. The defendant will be responsible for serving 100% of their new sentence.

Examples of the specified offenses are as follows:

For more information on gain time and potential awards for an inmate, ask a skilled defense attorney or contact the Florida Department of Corrections office.

What is the 85% Rule for Gain Time?

Under the “incentive gain time,” there is a rule that states that for any crime committed on or after October 1st, 1995, the inmate is required to serve 85% of the sentence that was imposed. The satisfaction of the 85% includes the time served in county jail as credited by the sentencing court.

Under the rule, inmates are eligible for earning up to 10 days per month of incentive gain time. Gain time can be earned up to the release date reaching the 85% of the imposed sentence, in which the gain time would no longer be applied to reduce the sentence. For example, if there is a rate of 10 days per month, you could earn around 913 days of gain time on a 10 year sentence. Under the 85% rule, however, only 548 days or 1 ½ years could be applied to the release date.

In March 2021, Senator Keith Perry proposed SB 1032, which would allow inmates to only serve 65% of their sentence if they completed rehab programs and training while in prison. The bill would increase the gain time that is eligible for being awarded. Instead of being required to serve 85% of the original sentence, it would drop to only 65%. Perry acknowledged that the bill is meant to change the goal of the Criminal Punishment Code from incarceration to punishment and rehabilitation.

Responses to Gould’s Case

The responses to Gould’s case were divided. Judge Tanenbaum, joined by several other judges, wrote an opinion on the Gould case. “There is no statutory preclusion,” he said. “The department in turn is required to exercise its discretion on that question.”

A dissent, or argument, was provided by Judge Scott Makar, Judge Ross Bilbrey, and Judge Susan Kelsey. The three blasted the decision and described the possibility for eligibility as, “the judicial equivalent of an unprompted cannonball dive into a long-placid wading pool.”

Makar provided the following comment in response to Gould’s case:

“Upending time-honored precedent with no discernable benefit to society or the legal system is ill-advised…particularly when doing so directly thwarts the Legislature’s clear and obvious intent to deny gain-time to convicted felons such as Gould, who—because of today’s jurisprudential flip-flop—is now eligible for potentially earlier release from prison despite his attempt to commit a sexual battery on a child under 12-years-old.”

Despite the opposition from several of the judges, the ruling on Friday declared that Gould will still be eligible for gain time, since he did not commit sexual battery but attempted sexual battery.

Finding a Defense Attorney in Tallahassee, Florida

If you or a loved one have been accused of a crime, it is imperative that you seek out legal help from a skilled criminal defense attorney. It can be extremely stressful to try and navigate the legal world, so getting help from an experienced attorney can make all the difference in a case. At Pumphrey Law Firm, Don Pumphrey and his team understand the importance of strategizing a strong defense. We promise to work tirelessly on your case and to fight for your freedom. For a free consultation, call (850) 681-7777 or leave an online message today.

Written by Karissa Key


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