Gain Time on a Minimum Mandatory Sentence?

If I had a nickel for every time I was asked “how much gain time am I getting”, I could buy a park-hopper pass to Disney. Sure, we try to keep our Orlando clients out of prison, but every now and then, the worst case prison scenario creeps up. For those of you not up on your criminal defense lingo, “gain time” is a reference to the discount an inmate receives off a sentence for good behavior, program participation, or any other reason the Department of Corrections can come up.

For example, under Florida law, if a judge sentences a defendant to 10 years prison–that prisoner may be released after serving only 8 ½ years, because Florida’s Department of Corrections (and Florida Statutes, really) allow a maximum “gain time” of 1 ½ years on a ten year sentence. Basically, Florida prisons are legally permitted to discount a sentence 15 percent under most circumstances, and thus all prisoners must serve at least 85 percent of their sentence (See Florida Statute 944.275 for more details). County jails may give more gain time, and that’s a story for another day. Today, our focus is prison sentences, more specifically minimum mandatory sentences, and how that affects gain time.

Yes, it’s true. The Florida legislature is “mandatory-minimum-prison-sentence-happy”. The Orwellian double-speak translation of a minimum mandatory google translates to “the legislature does not trust our wise elected judges to give a fair sentence, so the legislatures have imposed their own predetermined minimum amount of prison time”. But, on a minimum mandatory case, would the prisoner be entitled to gain time? It depends.

Let’s take a look at a few mandatory minimum charges, and break this down. Trafficking charges, like trafficking in cocaine, heroin, or oxycodone/hydrocodone, all carry a minimum mandatory sentence (3 years min man to start). The good news is, all of these cases are entitled to gain time. But what about the same 3 year minimum mandatory sentence in a Possession of a firearm by a convicted felon charge? Is a prisoner entitled to gain time? No. Because on this three year min man, the legislature expressly prohibited gain time within the statute.

The same goes for a person convicted of Fleeing and Attempting to Elude causing serious bodily injury or death–this first degree felony also carries a three year minimum mandatory, but the statute specifically states that such a defendant “is not eligible for statutory gain-time under s. 944.275”. And, the three year minimum mandatory sentence on a Battery on a Law Enforcement Officer while possessing a firearm must also be served day-for-day, with no gain time, per Florida Statute 784.07(3).

So, we now know that all 3 year minimum mandatory sentences are not created equally.

By the way, a friend of mine mentioned that this article fails to cite case law. So, let’s take a look at Mastay v. McDonough, Florida Department of Corrections, 928 So. 2d 512 (Fla. 1st DCA 2006). Mastay received a three year minimum mandatory sentence for trafficking in cocaine, and the Department of Corrections denied him gain time on this sentence. The prison was relying on statutory language found in section 893.135(3), stating that a prisoner under a minimum mandatory sentence is “not eligible for any form of discretionary early release, except pardon or executive clemency or conditional medical release.” But this trafficking law is somewhat different, in that the legislature deleted a phrase from the law which originally indicated that such a person shall not be eligible for any form of gain time. The court in Mastay correctly held that all trafficking charges are eligible for gain time (but not discretionary release, and there is a difference). That being said, several minimum mandatory sentences do, actually, prohibit gain time. But, those statutes explicitly state such. The trafficking statute makes no such prohibition.