‘Gain time’ ruling for man convicted of attempted sexual battery roils Florida court

TALLAHASSEE — Rejecting longstanding authorized precedent, a state appeals court stated Friday {that a} man convicted of attempted sexual battery on a toddler is eligible to be thought of for early launch from jail.

The ruling by the complete 1st District Court of Appeal turned down arguments by the Florida Department of Corrections and drew two dissents. It concerned whether or not inmate McMillan Gould ought to be eligible for what is called jail “gain time” after pleading no contest to attempted sexual battery on a toddler underneath age 12.

Judge Adam Tanenbaum, in a 22-page majority choice, stated state regulation bars acquire time for individuals convicted of committing sexual battery — however not, as within the Gould case, for attempted sexual battery. Inmates could obtain acquire time primarily based on components corresponding to their conduct and collaborating in work and packages.

Tanenbaum additionally wrote that the Tallahassee-based appeals court was backing away from what he referred to as “a plainly incorrect legal principle regarding Florida’s general criminal attempt statute” in rulings relationship to 1996 and 2001.

“Gould has a clear right to consideration for the award of incentive gain-time,” Tanenbaum wrote in an opinion joined absolutely 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.”

But Judge Scott Makar, in a dissent joined by Judges Ross Bilbrey and Susan Kelsey, blasted the choice, which he described as “the judicial equivalent of an unprompted cannonball dive into a long-placid wading pool.”

“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,” Makar wrote.

Bilbrey, in a dissent joined by Makar and Kelsey, pointed to the lengthy interval of time because the 1st District Court of Appeal’s 2001 ruling in a case generally known as Wilcox v. State, which concerned a defendant who had been convicted of attempted capital sexual battery and phrases of probation.

“Had the Legislature been dissatisfied with Wilcox or cases from other districts relying on it, the issue could have been rectified at any time over the past 21 years,” Bilbrey wrote.

But Tanenbaum wrote that the court within the Wilcox case had improperly discovered that “someone convicted of criminal attempt has violated the underlying offense statute, ‘as modified.’”

Looking for real-time news alerts?

Subscribe to our free Breaking News e-newsletter

You’ll obtain updates on main points and occasions in Tampa Bay and past as they occur.

You’re all signed up!

Want extra of our free, weekly newsletters in your inbox? Let’s get began.

Explore all of your choices

“We disavow both the general principle and its application in Wilcox because they run counter to the unambiguous text of the criminal attempt statute,” he wrote.

The ruling didn’t element the underlying circumstances of the Gould case, however Department of Corrections information point out he was sentenced in 2016 in Orange County to 25 years in jail. Gould sued the division in Leon County circuit court after it stated he was not eligible for acquire time.

Former Leon County Circuit Judge Karen Gievers sided with Gould, discovering that the division was required to contemplate his eligibility for acquire time, in keeping with Friday’s ruling. That prompted the division to take the difficulty to the appeals court in 2019.

The case remained pending for three years earlier than the complete court determined in March to contemplate it. Judge Joseph Lewis agreed with the result of the bulk opinion Friday however didn’t absolutely signal onto it.

By Jim Turner, News Service of Florida