448
Opinion of the Court
the secretary of the department of corrections was required to advise the Governor and, after receiving the Governor's verification of the capacity certification, to declare a state of emergency whereupon the sentences of all eligible inmates "shall be reduced by the credit of up to 30 days gain-time, in 5-day increments, as may be necessary to reduce the inmate population to 97 percent of lawful capacity." Fla. Stat. § 944.598(2) (1983).18
The later statutes slightly modified the procedures outlined in the 1983 statute. The administrative gain-time statute enacted in 1987 (after petitioner's plea of nolo contendere) provided that the secretary, after certification to the Governor, "may grant up to a maximum of 60 days administrative gain-time." Fla. Stat § 944.276(1). Unlike the emergency gain-time statute, the administrative gain-time statute made the issuance of gain-time discretionary, and it contained certain offense-based exclusions. The provisional credits provision was enacted to replace administrative gain-time and is essentially the same, except that it provides for the issuance of gain-time when the prison reaches
18 Respondent Attorney General Butterworth suggests that under the emergency gain-time statute, the maximum award petitioner could have realized was 30 days of emergency gain-time. Therefore, according to the attorney general, it is unlikely that the gain-time statute would have had any effect on petitioner's sentence. We do not agree that the statute lends itself to such a reading. The statute required the department of corrections to advise the Governor "whenever the population of the state correctional system exceeds 98 percent of lawful capacity." Fla. Stat. § 944.598(1) (1983) (emphasis added). The duty to grant up to 30 days gain-time in 5-day increments was continuing until the inmate population reached 97% of lawful capacity. If the inmate population were to rise again to 98%, the Secretary was required to issue additional gain-time.
Moreover, the attorney general's reading of the emergency gain-time statute would also limit the award of gain-time under the administrative gain-time and provisional credits statute. These statutes contain wording similar to the emergency gain-time statute, see Fla. Stat. § 944.276(1) (1987); Fla. Stat. § 944.277(1) (1989), yet the State has not interpreted the statutes to limit the award of gain-time to a total of 60 days.
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