DIXON v. BROWN (2025)

Ricky D. Dixon, Secretary, Florida Department of Corrections (“the Department”), appeals an order granting a petition for writ of mandamus filed by Franchot Brown. In his petition, Brown claimed that the Department violated the Ex Post Facto Clause when it changed its interpretation of a statute and removed previously awarded gain time. The trial court agreed with Brown and directed the Department to award Brown incentive gain time “consistent with its pre-2016 interpretation” of section 944.275, Florida Statutes. For the reasons set forth below, we affirm the trial court's decision.

I

As framed by the parties, this case presents the following question: is section 944.275(4), as it read in 1994, ambiguous? More specifically, does a reasonable interpretation of paragraphs (4)(b) and (4)(c) of that version of the statute support two different outcomes regarding the availability of incentive gain time? See Hess v. Walton, 898 So. 2d 1046, 1049 (Fla. 2d DCA 2005) (“A statute is normally regarded as ‘ambiguous’ when its language may permit two or more outcomes.” (citation omitted)); see also Nicarry v. Eslinger, 990 So. 2d 661, 664 (Fla. 5th DCA 2008) (“A statute is ‘ambiguous’ when its language is subject to more than one reasonable interpretation and may permit more than one outcome.” (citing Hess, 898 So. 2d at 1049)).

If these provisions create ambiguity and the Department's original interpretation of the statute was reasonable, then Brown prevails.¹ See Knuck v. Wainwright, 759 F.2d 856 (11th Cir. 1985) (holding that, if a statute is ambiguous and an agency's original interpretation of the statute was reasonable, then a retrospective change in the agency's interpretation may violate the Ex Post Facto Clause).

But if the proper interpretation of these provisions is unambiguous, and the Department's original interpretation of the statute was erroneous, then the Department prevails. See Metheny v. Hammonds, 216 F.3d 1307 (11th Cir. 2000) (holding that, if a statute is unambiguous and an agency's original interpretation of the statute was erroneous, then the agency may correct its interpretation without running afoul of the Ex Post Facto Clause); see also Lerner v. Gill, 751 F.2d 450, 457 (1st Cir. 1985) (“[T]he ex post facto clause does not give a prisoner a vested right to a favorable, but erroneous, interpretation of the law[.]” (citation omitted)).

Thus, the inquiry here requires us to determine whether the apparent conflict in the provisions created an ambiguity that the Department originally interpreted in a reasonable manner, which has ex post facto consequences. Knuck and Metheny both make this clear, and both parties acknowledge that these cases control our analysis.

II

Brown committed first-degree murder of Raphael Santana on August 27, 1994. His entitlement to incentive gain time was governed by section 944.275(4), Florida Statutes (1993). But a full understanding of the effect of this provision requires us to consider the applicable provisions of section 944.275 both before and after the date Brown murdered Santana, as well as administrative rules and Supreme Court cases concerning life sentences and gain time eligibility for life sentences.

In 1983, the Legislature rewrote section 944.275, establishing “basic gain-time” (paragraph (4)(a)) and “incentive gain-time” (paragraph (4)(b)). Ch. 83-131, § 8, Laws of Fla.; see also § 944.275(4)(a), (4)(b), Fla. Stat. (1983).²

Paragraph (4)(b) of the 1983 version read as follows: “For each month in which a prisoner works diligently, participates in training, uses time constructively, or otherwise engages in positive activities, the department may grant up to 20 days of incentive gain-time, which shall be credited and applied monthly.”

Subsection (4) remained substantially unchanged until 1993. Then, as part of an overhaul of the Sentencing Guidelines that included the placement of all felonies (except capital felonies) into “offense severity levels” 1 through 10, the Legislature added paragraph (4)(c). It read as follows:

(c) For each month in which a prisoner works diligently, participates in training, uses time constructively, or otherwise engages in positive activities, the departments may grant incentive gain-time in accordance with this paragraph. For sentences imposed for offenses committed on or after January 1, 1994, for offenses which are, were, or would have been ranked on the offense severity chart in s. 921.0012 in:

1. Levels 1 through 7, up to 25 days of incentive gain-time, which shall be credited and applied monthly.

2. Levels 8, 9, and 10, up to 20 days of incentive gain-time, which shall be credited and applied monthly.

Ch. 93-406, § 26, Laws of Fla.; see also § 944.275(4)(c), Fla. Stat. (1993). Note that on August 27, 1994, the date Brown murdered Santana, both paragraphs (4)(b) and (4)(c) were in effect. Because both paragraphs concern incentive gain time but each provide different methods of calculating incentive gain time, it could be uncertain how such gain time was to be calculated. Whether these paragraphs created uncertainty is a central issue in this case.

Perhaps this uncertainty provoked another rewrite of the incentive gain time provisions in 1995. After these 1995 amendments, the gain-time provision read as follows:

(b) For each month in which an inmate works diligently, participates in training, uses time constructively, or otherwise engages in positive activities, the department may grant incentive gain-time in accordance with this paragraph. The rate of incentive gain-time in effect on the date the inmate committed the offense which resulted in his or her incarceration shall be the inmate's rate of eligibility to earn incentive gain-time throughout the period of incarceration and shall not be altered by a subsequent change in the severity level of the offense for which the inmate was sentenced.

1. For sentences imposed for offenses committed prior to January 1, 1994, up to 20 days of incentive gain-time may be granted. If granted, such gain-time shall be credited and applied monthly.

2. For sentences imposed for offenses committed on or after January 1, 1994, and before October 1, 1995:

a. For offenses ranked in offense severity levels 1 through 7, under s. 921.0012 or s. 921.0013, up to 25 days of incentive gain-time may be granted. If granted, such gain-time shall be credited and applied monthly.

b. For offenses ranked in offense severity levels 8, 9, and 10, under s. 921.0012 or s. 921.0013, up to 20 days of incentive gain-time may be granted. If granted, such gain-time shall be credited and applied monthly.

3. For sentences imposed for offenses committed on or after October 1, 1995, the department may grant up to 10 days per month of incentive gain-time ․ State prisoners sentenced to life imprisonment shall be incarcerated for the rest of their natural lives, unless granted pardon or clemency.

§ 944.275(4), Fla. Stat. (1995). See also ch. 95-184, § 26, Laws of Fla.; Ch. 95-294, § 2, Laws of Fla.

In summary, the 1995 amendments 1) combined former paragraphs (4)(b) and (4)(c); 2) stated that former paragraph (4)(b) applies only to offenses committed before January 1, 1994; 3) specified that former paragraph (4)(c) applies to offenses committed between January 1, 1994 and October 1, 1995; 4) added a new incentive gain time provision for offenses committed after October 1, 1995; and 5) explicitly disqualified life sentences from gain time, unless clemency was granted.

At the time Brown murdered Santana, the Department had an administrative rule regarding gain time for inmates with life-or-death sentences:

Death or Life sentences cannot be reduced by gain-time. However, any inmate serving a death or life sentence will be considered for incentive gain-time and the gain-time will be posted so that in the event the life or death sentence is commuted to a number of years, the accumulated incentive gain-time will be applied to the inmate's sentence.

Fla. Admin. Code R. 33-11.0065(5)(c) (1994).

Note that the rule permits accumulated incentive gain time to be “applied,” not when the inmate is resentenced to a term of years, but when the sentence is commuted to a term of years. A commutation is a specific act where Governor and Cabinet reduce a sentence to a less severe punishment and is not a judicial resentencing. See Art. 4, § 8, Fla. Const. (authorizing the governor, “with the approval of two members of the cabinet,” to “commute punishment”); Stone v. Burch, 154 So. 128, 129 (Fla. 1934) (“A commutation is the change of punishment to which a person has been condemned to a less severe one, or the substitution of a less for a greater penalty or punishment.”). This limitation makes sense because, as discussed below, until recently commutation was the only way possible to have a term-of-years sentence for a capital felony.

The Department's rule affected all persons convicted of first-degree murder. At the time Brown murdered Santana, the only authorized penalties for first-degree murder were death or life imprisonment with no eligibility for parole. §§ 775.082(1)(a) (Supp. 1994), 782.04, Fla. Stat.

This requirement was altered in 2005, when the Supreme Court of the United States ruled that a death sentence imposed upon an offender who was a juvenile at the time of the offense violated the Eighth Amendment. Roper v. Simmons, 543 U.S. 551 (2005). It was altered further in 2012, when the Supreme Court held that “the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile homicide offenders.” Miller v. Alabama, 567 U.S. 460 (2012). As a result of Miller, and the consequent 2014 amendments to section 775.082(1), it became possible to have a conviction for first-degree murder and yet have a term-of-years sentence—even without a commutation. See ch. 2014-220, § 1, Laws of Fla. (“2014 juvenile sentencing law”).

III

Brown falls within a very small class of inmates who meet the following criteria: 1) they committed first-degree murder when they were under 18 years old; 2) the murder occurred on or after January 1, 1994, but before October 1, 1995; 3) as a result of their convictions, they received a death or mandatory life sentence; and 4) they were later resentenced to a term of years, without any alteration to the offense of conviction.

The Department explained Brown's gain time calculation as follows: while he was serving his sentence, he earned incentive gain time, which the Department “posted” to his life sentence, even though it could not apply any gain time to calculate a release date. The Department did so in the event that Brown was resentenced from his gain-time ineligible life sentence to a gain-time eligible term-of-years sentence. In other words, Brown earned gain time, but it was only “posted on the books” in the event of resentencing to a term of years. This explanation is generally consistent with the Department's administrative rule, except that it did not appear to limit the prospect of a term-of-years sentence to a commutation.

When Brown was resentenced to a term of years pursuant to the 2014 juvenile sentencing law, the Department applied accumulated incentive gain time to his sentence and calculated a release date accordingly. However, after concluding it erroneously awarded incentive gain time to Brown in 2016, the Department removed that gain time and recalculated Brown's release date.

After exhausting the administrative process, Brown filed a petition for writ of mandamus seeking restoration of the removed gain time. Relying on the Eleventh Circuit's decision in Knuck, Brown argued that the Department violated the Ex Post Facto Clause of the United States Constitution when it changed its interpretation of the 1994 version of section 944.275 and removed previously awarded gain time.³ See Art. I, § 10, cl. 1, U.S. Const. (prohibiting States from passing any “ex post facto law”).

In response, the Department relied on the Eleventh Circuit's decision in Metheny, arguing that its correction of an erroneous award of gain time did not violate the Ex Post Facto Clause because section 944.275 clearly and unambiguously prohibited the Department from awarding gain time to capital offenders like Brown. See Metheny, 216 F.3d at 1310 (“A new regulation which just corrects an erroneous interpretation (even if the error was a reasonable one) by an agency of a clear pre-existing statute does not violate the Ex Post Facto Clause.” (emphasis supplied)).

The Department argued that Brown's reliance on Knuck was misplaced as that decision hinged on a finding that the underlying statute was ambiguous. See Metheny, 216 F.3d at 1311 n.11 (“Knuck is materially different: it concerned an interpretation of an ambiguous statutory provision made under interpretive authority expressly delegated to the agency, which is not the case here.”).

According to the Department, because the 1993 version of section 944.275(4)(c) applied only to Level 1 through Level 10 offenses—and not to capital felonies—Brown was never eligible to receive incentive gain time at all. See § 921.001(4)(b)2., Fla. Stat. (1993) (noting that the sentencing guidelines, as amended, did not apply to capital felonies committed on or after January 1, 1994); § 944.275(4)(c), Fla. Stat. (1993) (limiting incentive gain time to inmates who committed an offense that qualifies as a Level 1 through 10 offense under the 1994 guidelines).

Thus, the Department argued that Brown “had no right to the credits in the first place as a matter of law.” Therefore, the Department's correction of its erroneous award of incentive gain time did not violate the Ex Post Facto Clause.

The trial court granted the petition and ordered the Department to restore the removed incentive gain time and recalculate Brown's release date. The Department timely appealed.

IV

On appeal, the parties dispute which Eleventh Circuit decision applies to the facts of this case. According to Brown, Knuck applies; according to the Department, Metheny applies.

Knuck and Metheny provide a series of guiding questions for courts when analyzing Ex Post Facto claims like the one here. These guiding questions lead to three possible scenarios:

1. The statute is ambiguous, and the agency's original interpretation of the statute was reasonable.

2. The statute is ambiguous, and the agency's original interpretation of the statute was not reasonable.

3. The statute is clear and unambiguous, and the agency's original interpretation of the statute is therefore irrelevant.

Scenario #1: If the statute is ambiguous and the agency's original interpretation of the statute is reasonable, then a change in interpretation that disadvantages the inmate can violate the Ex Post Facto Clause. This is what occurred in Knuck.

Scenario #2: If the statute is ambiguous and the agency's original interpretation of the statute was not reasonable, then neither Knuck nor Metheny apply. This scenario appears to be the only one where we could apply the canons of statutory construction to determine the correct interpretation of an ambiguous statute. For the reason outlined below, we need not do so here.

A court may find a statute ambiguous if a reasonable interpretation of the statute supports two or more possible outcomes. See, e.g., Hess, 898 So. 2d at 1049. Here, the only two possible interpretations of the 1993 version of section 944.275(4) are eligibility under paragraph (4)(b) or ineligibility under paragraph (4)(c). If the statute is ambiguous because a reasonable interpretation would support either outcome, then it would seem difficult to argue that the Department's original choice between those two outcomes was unreasonable. See Nicarry, 990 So. 2d at 664.

Scenario #3: If the statute is clear and unambiguous, then an agency change from an erroneous interpretation to the correct one has no Ex Post Facto implication. See Metheny, 216 F.3d at 1310. Put another way, if the statute is clear and unambiguous, then the language of the statute is all that matters. See Metheny, 216 F.3d at 1311 n.11.

Expressed in Ex Post Facto terms, an inmate has no vested right in the agency's continued misinterpretation of a clear and unambiguous statute. See Mileham v. Simmons, 588 F.2d 1279, 1280 (9th Cir. 1979) (“The Ex post facto clause of the Constitution does not give [a prisoner] a vested right in [the] erroneous interpretation [of a statute].”). Therefore, the agency can correct its misinterpretation of that statute without running afoul of the Ex Post Facto Clause. See Stephens v. Thomas, 19 F.3d 498, 500 (10th Cir. 1994) (“[The Ex Post Facto Clause] does not prohibit, however, the correction of a misapplied existing law which disadvantages one in reliance on its continued misapplication.” (citations omitted)); see also Caballery v. United States Parole Comm'n, 673 F.2d 43, 47 (2d Cir. 1982) (“[A]n agency misinterpretation of a statute cannot support an ex post facto claim.”).

A

The Department raises several arguments supporting reversal. First, the Department suggests that the decision in Loper Bright Enter. v. Raimondo, 603 U.S. 369 (2024) calls into question whether the reasonableness of an agency's original interpretation of a statute still matters for Ex Post Facto purposes. The Department does not, however, address whether Loper Bright extends beyond the Administrative Procedure Act. See Loper Bright, 603 U.S. at 393 (“§ 706, [of the APA] makes clear that agency interpretations of statutes—like agency interpretations of the Constitution—are not entitled to deference.”). Nor does Loper Bright address whether an administrative rule can implicate the Ex Post Facto Clause. We decline to do so here.⁴

In a footnote, the Department also argues that the Ex Post Facto Clause does not apply in this case because its “interpretation of Section 944.275 is an interpretive rule, not a legislative rule implicating the Ex Post Facto Clause.” We do not reach that question, however, because the Department failed to properly present the issue—mentioning it only in a footnote. See Brown v. State, 304 So. 3d 243, 277 n.16 (Fla. 2020) (declining to address an issue “based on assertions in a footnote”); Simkins Indus., Inc. v. Lexington Ins. Co., 714 So. 2d 1092, 1093 (Fla. 3d DCA 1998) (explaining that referencing a matter in a footnote “does not elevate the matter to a point on appeal”); Brooks v. State, 175 So. 3d 204, 233 (Fla. 2015), abrogated on other grounds by Cruz v. State, 372 So. 3d 1237 (Fla. 2023) (refusing to address a challenge “presented primarily in a footnote”).⁵

B

Before discussing the Department's next argument, we must compare it to its argument made below. There, the Department raised the following two arguments in the alternative:

• Brown is ineligible for gain time because the statutory provision in effect on his date of offense does not authorize gain time for capital offenses.

• Rule 33-11.0065(5)(c) does not apply to Brown because the rule addresses reduction of sentence to a term of years as a result of commutation, not as a result of resentencing by a court.

These two arguments were presented in the alternative because they are inconsistent. If, as the first argument suggests, capital felons are ineligible for gain time, then the rule is invalid inasmuch as it allows capital felons (who received death or life sentences) to receive gain time, as long as their sentences are commuted. On appeal, the Department chooses to present the first argument—that paragraph (4)(c) of the 1993 version of section 944.275 clearly and unambiguously prohibits the Department from awarding incentive gain time to Brown, and that paragraph (4)(b) clearly and unambiguously does not provide any separate right to incentive gain time for Brown—rather than the second, inconsistent argument. Accordingly, we do not consider the second argument because it contradicts the Department's argument here.

To support its argument that section 944.275 clearly and unambiguously prohibits Brown from receiving incentive gain time, the Department relies on several canons of statutory construction. For instance, the Department relies on the canons of verba cum effectu sunt accipienda, to argue that a broad reading of paragraph (4)(b) would render subparagraph (4)(c)2. superfluous; the absurdity doctrine, to argue that a broad reading of subsection (4) may lead to the assessment of 40 days gain time per month; expressio unis est exclusio alterius, to argue that because subparagraph (4)(c)2. does not include capital offenses, those offenses are necessarily excluded from both subparagraph (4)(c) and subparagraph (4)(b); and generalia specialibus non derogant to argue that the more specific language of paragraph (4)(c) controls over the more general language in paragraph (4)(b).

The Department's statutory interpretation argument boils down to a claim that paragraphs (4)(b) and (4)(c) should be interpreted in a way that renders them compatible, not contradictory. According to the Department, the two paragraphs can be interpreted in a compatible way if paragraph (4)(b) applies to offenses committed prior to January 1, 1994, and paragraph (4)(c) applies to offenses committed on or after January 1, 1994. To support this argument, the Department points to the 1995 amendments to section 944.275. Specifically, the Department argues that the 1995 version of subparagraph (4)(b)2. shows that, in 1993, the Legislature intended for the 1993 version of paragraph (4)(c) to apply exclusively to all offenses committed on or after January 1, 1994.

The Department acknowledged that any retrospective application of the 1995 amendments to Brown's detriment would violate the Ex Post Facto Clause. Nevertheless, the Department argues that the 1995 amendment shows the 1993 Legislature's intent with regard to section 944.275(4)(b) and (4)(c). In other words, the Department argues that the 1995 amendment is important for clarification purposes only—not for any substantive effect on Brown's incentive gain-time eligibility.

However, the Department does not explain why the 1995 amendments were necessary to clarify the 1993 amendments if the 1993 amendments were clear and unambiguous. See, e.g., Dadeland Depot, Inc. v. St. Paul Fire & Marine Ins. Co., 945 So. 2d 1216, 1230 (Fla. 2006) (noting that the court has been “reluctant to look at subsequent amendments to determine legislative intent when the language of a statute is clear and unambiguous”).

The Department acknowledges that “the application of three distinct, non-overlapping gain-time statutes was becoming confusing.” Nevertheless, the Department asserts in a footnote that “[m]aking absolutely clear to whom the 1983 statute applied did not somehow render the previous version of the statute ambiguous.” It appears that the argument is that the 1993 amendments were clear, but the 1995 amendments were “absolutely clear.”

Either way, we reject the premise that the 1995 Legislature can conclusively establish what the 1993 Legislature meant when it passed the 1993 amendments. See State v. Crose, 378 So. 3d 1217, 1241 (Fla. 2d DCA 2024) (noting that “a post hoc, extratextual source such as a subsequent amendment to a criminal statute, can no longer be a viable tool to derive textual meaning.”).

C

For his part, Brown argues that the 1994 version of section 944.275 is ambiguous. According to Brown, the Department's original interpretation of paragraphs (4)(b) and (4)(c) was reasonable: inmates who commit a capital offense are eligible to earn up to 20 days of incentive gain time every month under (4)(b); and, that gain time is applied to a life sentence in the event that sentence is converted to a term-of-years sentence. Therefore, under Knuck, the Department violated the Ex Post Facto Clause when it changed its original interpretation and removed incentive gain time that Brown previously earned.

V

A

We find that the 1994 version of section 944.275 is ambiguous because a reasonable interpretation of the statute supports two possible outcomes. See Hess, 898 So. 2d at 1049. On the one hand, Brown is ineligible for incentive gain time under paragraph (4)(c) because he committed a capital offense; on the other, subparagraph (4)(b) suggests that all inmates are eligible for incentive gain time, regardless of offense level. Therefore, the statute is ambiguous. See Nicarry, 990 So. 2d 661 at 664.

Having found the statute ambiguous, we also find that the Department's contemporaneous interpretation of that statute was reasonable, that is, an inmate who committed a capital offense can receive incentive gain time under paragraph (4)(b) even if he cannot receive that gain time under paragraph (4)(c). See Colbert v. Department of Health, 890 So. 2d 1165, 1166 (Fla. 1st DCA 2004) (“[An agency's interpretation of law] will be upheld if the agency's construction falls within the permissible range of interpretations.” (citing Natelson v. Department of Ins., 454 So. 2d 31, 32 (Fla. 1st DCA 1984))).

Applying Knuck, we conclude that the Department violated the Ex Post Facto Clause when it changed its interpretation of the statute and removed gain time earned by Brown. See Knuck, 759 F.2d at 859 (“In this case, Knuck had over 10 years notice through the established practice and regulations of the D.O.C. that he would be awarded lump sum gain time. We therefore affirm the district court's holding that the recalculation of Knuck's gain time violated the ex post facto clause.”).

We acknowledge that the Department presented reasonable arguments regarding the correct interpretation of section 944.275. But we do not reach them here. Under Knuck and Metheny, we are not tasked with determining the correct interpretation of an ambiguous statute. Once we found the 1994 version of the statute ambiguous, Metheny no longer applies. At that point, our task is to determine whether the Department's original interpretation was reasonable under Knuck. Because we so find, there is no need for us to engage in any further interpretation of the statute.

B

The dissent correctly notes that the Florida Supreme Court has moved away from the strict two-part analysis for statutory interpretation that requires us to, first, determine whether a statute is ambiguous, and second, if ambiguous then to apply canons of construction to determine correct meaning. See, e.g., Koile v. State, 934 So. 2d 1226, 1233 (Fla. 2006) (noting that courts resort to rules of statutory construction only “if the statute is ambiguous on its face”). Instead, the Court has emphasized that canons of construction “aren't necessarily triggered by ambiguity, but by the need to understand a text[ ]” so that “we don't wait until we are confused to consider” history and context. DeSantis v. Dream Defs., 389 So. 3d 413, 425 n.12 (Fla. 2024).

We do not dispute our supreme court's observation. But this observation applies to a different matter than the one presented here. Our goal is not to determine correct meaning in the same manner as the typical statutory interpretation issue. Rather, we are attempting to determine whether an agency interpretation of a statute has ex post facto effect. And this analysis turns on whether the statute is ambiguous, or, more accurately, whether the statute is susceptible to different outcomes. Knuck and Metheny both used this approach. In short, the fact of ambiguity matters to the ex post facto analysis in a way that it does not in typical statutory interpretation.

VI

We conclude that the 1994 version of section 944.275 is ambiguous. We also conclude that the Department's original interpretation of that statute was reasonable. Furthermore, we conclude that, under Knuck, the Department violated the Ex Post Facto Clause of the United States Constitution when it removed incentive gain time previously earned by Brown. Accordingly, we affirm the order granting petition for writ of mandamus.

Affirmed.

I agree with Judge Winokur's analysis if the statutory regime is considered ambiguous. But I prefer another analytical path to affirming based on the view that the plain language of the statute and rule aren't ambiguous at all. At the time of Mr. Brown's 1994 crime, the applicable statute vested general discretion in the Department to award incentive gain time to inmates based upon good behavior. § 944.275(4)(b), Fla. Stat. (1993). The next paragraph addressed incentive gain time for crimes committed in 1994 and ranked at offense severity levels 1-10. Because Mr. Brown's capital offense didn't qualify as a level 1-10 offense, this paragraph did not apply to him. § 944.275(4)(c), Fla. Stat. (1993) (addressing sentences “imposed for offenses committed on or after January 1, 1994, ․ which are, were, or would have been ranked on the offense severity chart ․ in [Levels 1-10]”). Consistent with the Department's discretion to award gain-time under (4)(b)—the only part of the statute that applied to Mr. Brown's ultimate sentence—the Department promulgated a statute-compatible rule in 1994, applicable to offenders in Mr. Brown's situation. The rule stated that “any inmate ․ in the event the death or life sentence is commuted to a number of years, the accumulated gain time will be applied to the inmate's sentence.” Fla. Admin. Code R. 33-11.0065(5)(c) (1994).

Mr. Brown's sentence was commuted from a life sentence to a number-of-years sentence. See Stone v. Burch, 154 So. 128, 129 (1934) (“A commutation is the change of punishment to which a person has been condemned to a less severe one, or the substitution of a less for a greater penalty or punishment.”); see also Commutation, BLACK'S LAW DICTIONARY (6th ed. 1990) (defining “Commutation” as: “Alteration; change; Substitution; the act of substituting one thing for another. In criminal law, the change of a punishment to one which is less severe; as from execution to life imprisonment”). More specifically, the United States Supreme Court's evolving Eighth Amendment jurisprudence prompted Mr. Brown's life sentence to be replaced with a less severe, 32-year sentence running through 2027. Consequently, the 1993 statute expressly approved, and the Department's 1994 gain-time rule overtly directed, that gain time be applied to his commuted, number-of-years sentence. § 944.275(4)(b), Fla. Stat. (1993); Fla. Admin. Code R. 33-11.0065(5)(c) (1994); cf. McGill v. Dixon, 2024 WL 4143413, at *6–7 (N.D. Fla. May 8, 2024) (describing how the Department applied gain-time credit and freed one or more inmates similarly situated to Mr. Brown). Not crediting Mr. Brown with the gain time called for under the 1994 legal regime created an ex post facto problem just as the trial court found here. See, e.g., Leftwich v. Fla. Dep't of Corr., 148 So. 3d 79, 83 (Fla. 2014) (identifying an ex post facto clause violation where applicable sentencing law is re-interpreted to retroactively apply a longer prison sentence).

The lead opinion ably sets out the state of the applicable law. I will not repeat it here. I disagree in two principal respects: the executive action at issue here was not a violation of the Ex Post Facto Clause because it was not an exercise of delegated legislative power, and the controlling statute is not ambiguous.¹ For the following reasons I would reverse.

I.

This case presents an exercise of ordinary executive power that cannot amount to a violation of the Ex Post Facto Clause. Because the executive and its functionaries in the administrative state do not make law, they cannot, generally, violate this constitutional principle. Administrative action can only amount to the making of “laws,” in an ex post facto sense, when the agency is exercising delegated legislative power.²

“The Ex Post Facto Clause prohibits States from enacting laws that, by their retroactive application, increase the punishment for a crime after it has been committed.” Metheny v. Hammonds, 216 F.3d 1307, 1310 (11th Cir. 2000) (citing Garner v. Jones, 529 U.S. 244, 249 (2000)). The central issue here is the extent to which an administrative agency's execution of a statute can amount to the creation of a “law” subject to the Ex Post Facto Clause.³ The Eleventh Circuit explained that administrative rules or regulations can be “laws” in this sense when they are “the product of a legislative delegation of power and thus [have] the force and effect of law.” Id. (citing Akins v. Snow, 922 F.2d 1558, 1561 (11th Cir. 1991)). But absent a legislative delegation of power, any enforcement or rulemaking by an agency is simply routine executive branch action. Id. Without such a delegation, Metheny explained that there was no ex post facto violation because “the state law—the statute—has remained unchanged.” Id. It clarified that the regulation at issue substantively differed from those in Knuck and Akins because in those cases the agencies were acting on a legislative delegation of power to promulgate the rules at issue. See id. (“In Akins, however, we reasoned that the then pertinent rules and regulations of the Board were ‘laws’ because they were the product of a legislative delegation of power and thus had the force and effect of law.”); see also id. at 1310 n.11 (noting the regulatory scheme in Knuck v. Wainwright, 759 F.2d 856, 858–59 (11th Cir. 1985), materially differed because it was “made under interpretive authority expressly delegated to the agency”). Metheny therefore concluded that, without a delegation of power, the administrative regulation, which corrected a prior erroneous interpretation of the statute, “did not change the law.” Id.

The question here regards Brown's eligibility to gain time. And the governing statute did not delegate the power to determine eligibility.⁴ The agency was permitted only to adopt rules for earning and forfeiting gain time. See Fla. Stat. § 944.275(7) (1994) (“The department shall adopt rules to implement the granting, forfeiture, restoration, and deletion of gain-time.”). And so we see that here, like Metheny, there is no delegation of legislative power. This was simply the executive branch endeavoring to faithfully execute the laws. Carrying out the law is a core executive branch function. See Art. IV, § 1, Fla. Const. (vests the executive power in the governor and mandates that the governor “shall take care that the laws be faithfully executed”); Executive, Black's Law Dictionary (4th ed. 1951) (“As distinguished from the legislative and judicial departments of government, the executive department is that which is charged with the detail of carrying the laws into effect and securing their due observance.”); see also Executive Act, Black's Law Dictionary (4th ed. 1951) (“ ‘Executive’ and ‘administrative’ duties are such as concern the execution of existing laws.”).

Executive branch priorities change with administrations. Enforcement priorities change. Views of the law change. But executive branch enforcement and rulemaking cannot change the law itself, not without a delegation of power. Nor can an agency lawfully claim ex post facto law-making power unilaterally. Such an act would be “legally void: without any authorization in the law,” Metheny, 216 F.3d at 1310, and it will not bind the state. The executive branch, therefore, cannot trigger the Ex Post Facto Clause unless it acts within the scope of delegated legislative power, that is, in the role of the law maker. Id. at 1311 (“The retroactive application of a new [administrative] regulation to correct a prior erroneous interpretation of a duly-enacted statute cannot support [an] ex post facto claim.”).

When we apply the legal principles of ex post facto as set out in cases like Knuck to ordinary executive action (without delegations of legislative power), not only does it confuse the role of the executive, but it disturbs the powers vested in the legislature and the courts. The agency effectively takes charge by granting gain time in contradiction of the legislature's statute and the agency action is rendered unreviewable by the courts. The legislature no longer creates the law, and the judiciary no longer says what the law is. See Johnson v. State, 336 So. 2d 93, 95 (Fla. 1976) (“[T]he Legislature has the power to enact substantive law, and it is the duty of the courts to enforce such substantive law.”) (citing Art. III, § 1, Fla. Const.).

Brown does not argue that he is actually entitled to gain time under the law enacted by the legislature. He argues only that the agency cannot fix a prior mistake. Once the mistake is made in his favor, he maintains that he has a right to its benefits, even when a proper reading of the statute would not permit them. And so he claims that an ex post facto violation occurred based on an agency created right that the substantive law does not convey. By accepting this argument and applying Knuck to agency action taken without delegated legislative power, the result is the relinquishment of the judicial power to construe statutes. In fact, the lead opinion does just that. It concludes that “we are not tasked with determining the correct interpretation of an ambiguous statute.” It, therefore, declines to consider the proper statutory interpretation, deciding instead that, right or wrong, the agency action binds our decision.

I agree that deciding Brown's entitlement to gain time under the statute is unnecessary to resolve his ex post facto claim, but for a different reason. Where the agency action amounts only to an attempt to carry out the language of the statute, without delegated law-making power, the act cannot amount to an ex post facto violation. Because the agency action here was not an exercise of delegated legislative authority to determine eligibility to gain time, I would reverse.

II.

Assuming arguendo that the agency action ⁵ was an exercise of delegated power, it is still unlawful because the statute is not ambiguous. The agency, therefore, had no authority to depart from its terms. Any action inconsistent with the statute was unlawful and nonbinding under the Ex Post Facto Clause.

The lead opinion contends there are “only two possible interpretations” of the statute: Brown is either eligible under paragraph (4)(b) or ineligible under paragraph (4)(c). It says:

The Department's statutory interpretation argument boils down to a claim that paragraphs (4)(b) and (4)(c) should be interpreted in a way that renders them compatible, not contradictory. According to the Department, the two paragraphs can be interpreted in a compatible way if paragraph (4)(b) applies to offenses committed prior to January 1, 1994, and paragraph (4)(c) applies to offenses committed on or after January 1, 1994.

Interpreting the statute in this way is correct, is common sense, and is our duty. This is no great interpretive leap. It is what the statute explicitly says: Paragraph (4)(c) applies “For sentences imposed for offenses committed on or after January 1, 1994.” It is not necessary that paragraph (4)(b) also say the inverse for the meaning to be plain on its face.

When a reading of a provision and consideration of the broader context reveals an obvious conclusion, we are done. We do not then ask if it is possible to read confusion into the statute. Sure it is. That is always possible. But we must guard against the tendency to overcomplicate the straightforward. Justice Scalia wrote in the first paragraph of his prefatory remarks in Reading Law that “intelligent expression does not contradict itself or set forth two propositions that are entirely redundant.” Antonin Scalia & Bryan Garner, Reading Law: The Interpretation of Legal Texts 51 (2012). I agree with the Department that we should not read contradiction into the statute. In fact, I view it as our duty to avoid reading confusion into statutes. When there is only one non-contradictory reading, we should apply it. And just because we can read confusion into the statute, does not make the statute ambiguous.

I read the statute and have no trouble seeing only one reasonable interpretation. Here too, I would, therefore, apply Metheny. To the extent that, after Miller, the Department promulgated a rule or took action that would have conveyed eligibility to incentive gain time to juvenile capital murder offenders post January 1, 1994, such a rule was unlawful and inconsistent with the controlling statute. I would reverse.

FOOTNOTES

1.   The Department does not contest whether its original interpretation of the statute was reasonable. Instead, the Department relies on Metheny v. Hammonds, 216 F.3d 1307 (11th Cir. 2000) to argue that, if the original interpretation was erroneous, then reasonableness is irrelevant. See Metheny, 216 F.2d at 1310.

2.   We do not address Brown's entitlement to basic gain time under subparagraph (4)(a) of section 944.275, Florida Statutes.

3.   Neither party addresses Article I, section 10 of the Florida Constitution, which likewise prohibits the passage of an ex post facto law. Art. I, § 10, Fla. Const.

4.   Nor do we address any argument based on Article V, section 21 of the Florida Constitution, addressing judicial deference to an administrative agency's interpretation of a statute. See Art. V, § 21, Fla. Const. The Department makes a passing reference to that provision of the Florida Constitution but provides no analysis.

5.   The dissent accepts the Department's framing of this issue, focusing on whether the agency action in this case was “an exercise of delegated legislative authority to determine eligibility to [receive] gain time.” Again, the Department raised this issue only in a footnote, devoting its opinion primarily to the separate question of whether a proper reading of the statute excludes gain time for Brown. It would be improper for us to reverse the ruling below when the Department did not properly raise it in this appeal.Even if we were to consider this specific matter, we note that this case involves incentive gain time under paragraphs (4)(b) and (4)(c)—not basic gain time under paragraph (4)(a). The latter is automatic. See § 944.275(4)(a), Fla. Stat. (1993) (“As a means of encouraging satisfactory behavior, the department shall grant basic gain-time at [a specified] rate[.]” (emphasis supplied)). In contrast, incentive gain time is discretionary. See § 944.275(4)(b), (4)(c), Fla. Stat. (1993) (both reading, “[f]or each month in which a prisoner works diligently, participates in training, uses time constructively, or otherwise engages in positive activities, the department may [award gain time]” (emphasis supplied)). Because the Department failed to present properly an argument that the rule is interpretive rather than legislative, we do not address whether the Legislature's delegation of rule-making authority under section 944.09, Florida Statutes, authorized the Department to implement rules for discretionary awards of incentive gain time, even if it may not for basic gain time.

1.   Like Chief Judge Osterhaus, I agree with Judge Winokur's sound analysis to the extent that there is an ambiguous statutory regime. But I too find the statute's language unambiguous, and my view of the statute requires reversal.

2.   Whether and to what extent administrative agencies can constitutionally exercise such authority is a question for another day. See Chiles v. Child. A, B, C, D, E, & F, 589 So. 2d 260, 264 (Fla. 1991) (noting that “no branch may delegate to another branch its constitutionally assigned power”).

3.   As the lead opinion has explained, Florida Administrative Code Rule 33-11.0065(5)(c) (1994) was in effect at the time of Brown's offense and permitted the accumulation of gain time on death or life sentences in the event of a sentence commutation. I agree with Judge Winokur that commutation is a constitutional term-of-art and, therefore, disagree with Chief Judge Osterhaus's contention that Brown's sentence was commuted. And I see no indication that the rule was ever intended to apply decades later to the United States Supreme Court's unexpected discovery of a new prohibition in the Eighth Amendment. See Miller v. Alabama, 567 U.S. 460, 479 (2012) (holding that “the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile [homicide] offenders”). In the uncertainty that followed Miller, the Department temporarily applied this old rule to the small number of offenders in Brown's position. Shortly after, the Department realized the statute prohibited incentive gain time in their cases and corrected the mistake. I am skeptical that the short-lived decision to apply the old rule to Brown amounts to the promulgation of a rule in the first place.

4.   The lead opinion does not engage with this question, concluding instead that it was only raised in a footnote and was, therefore, not adequately presented on appeal. Whether an issue is adequately presented on appeal can be a difficult judgment call wherein good faith judges reasonably disagree. Here, I simply read the brief differently and find more than a single footnote. The brief contains multiple paragraphs over multiple pages addressing the issue. The referenced footnote comes on the heels of argument in the brief's body contending that an agency's interpretation of statute only violates the Ex Post Facto Clause “when made under an ‘express delegation of legislative authority.’ ” And the footnote itself says, “As explained below ․” The brief then “explain[s] below,” spending the next three pages on the argument that delegation is even less likely in a post-agency-deference landscape. It concludes by saying, “The Department was not permitted to grant any gain-time beyond what the Legislature authorized, ․ so it promulgated no regulation or ruling with the force of law that could apply retroactively to Brown's benefit or detriment.” In short, I believe the issue was adequately presented and I would address it.

5.   The lead opinion treats the original agency action as the promulgation of a rule to track gain time in the event of a later sentence commutation. I view the original relevant agency action as the agency's temporary post-Miller decision to apply that preexisting rule to Brown's unforeseen circumstances. But in any event, to the extent the action purported to convey gain time eligibility to Brown, it was an unlawful contravention of the governing statute.

Winokur, J.

Osterhaus, C.J., concurs with opinion; Long, J., dissents with opinion.