ROBERT W. WELLER, APPELLANT,
v.
STATE OF FLORIDA AND FLORIDA PAROLE COMMISSION, APPELLEES
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Robert Weller sought mandamus to compel the Florida Parole Commission to grant him a parole interview and allow gain time credits to offset his minimum mandatory sentences. The court affirmed the denial of the petition, holding that minimum mandatory sentences cannot be reduced by gain time credits and the legislative intent prohibits such offsets.
The court held that minimum mandatory sentences cannot be reduced by gain time credits. The legislative intent in sections 893.135(l)(b)3 and 947.16(2)(g)3 requires a prisoner to serve the entire minimum mandatory sentence without regard to any gain time, and the Parole Commission has no statutory authority to reduce minimum mandatory sentences with gain time.
[1] Gain time cannot be used to offset a statutory minimum mandatory sentence.
[2] A prisoner is not entitled to a parole interview until 18 months prior to the expiration of the mandatory minimum portion of their sentence when a minimum mandatory sente…
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Join FLexlaw to unlock all legal intelligence“The obvious legislative intent manifested in these two sections is to compel a prisoner to serve the entire 15-year minimum mandatory sentence in prison without regard to any type of gain time authorized under various statutory provisions.”
Establishes the core holding that minimum mandatory sentences cannot be reduced by gain time credits and reflects legislative intent
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Join FLexlaw to unlock all legal intelligenceWeller was convicted of two counts of second degree murder with a firearm, one count of attempted first degree murder with a firearm, one count of rob…
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ZEHMER, Judge.
We review the denial of a petition for mandamus by which Robert W. Weller sought to compel the Florida Parole Commission to grant him gain time against his sentence. Weller was convicted of two counts of second degree murder with a firearm, one count of attempted first degree murder with a firearm, one count of robbery with a firearm, and one count of trafficking in cocaine. He was sentenced to life imprisonment on each of the first three counts, with the 3-year minimum mandatory on each count to run concurrently. Sentence was suspended on the count for robbery. His sentence for trafficking was 15 years, with a 15-year minimum mandatory provision for drug trafficking, to run concurrently with the other sentences. The thrust of Weller’s petition is that the commission must give him an interview for purposes of setting a proposed parole release date (PPRD) because he is entitled to offset gain time allowable under the statutes against the minimum mandatory sentences. We disagree and affirm.
Weller’s 15-year minimum mandatory sentence for the first degree felony of trafficking in cocaine was required by section 893.135(l)(b)3, Florida Statutes (1987). Therefore, section 947.16(2)(g)3 fixes Weller’s initial parole interview date as “no sooner than 18 months prior to the expiration of the mandatory minimum portion of the sentence.” The obvious legislative intent manifested in these two sections is to compel a prisoner to serve the entire 15-year minimum mandatory sentence in prison without regard to any type of gain time authorized under various statutory provisions. To accept Weller’s argument would render the words “no sooner than 18 months prior to the expiration of the minimum portion of the sentence” superfluous, if not meaningless. There is no statutory authority for the commission to reduce a minimum mandatory sentence with gain time, and the commission has not attempted to do so.
AFFIRMED.
ERVIN and WENTWORTH, JJ., concur.
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State v. McKENZIE, 574 So. 2d 1176 (Fla. 5th DCA 1991)…s v. Powell, 504 So. 2d 1250 (Fla. 1st DCA 1986) indicates in a roundabout way that where statutes do not exclude the possibility of gain time, a mandatory minimum sentence may be reduced by gain time. An opposite view was taken by Weller v. State, 547 So. 2d 997 (Fla. 1st DCA 1989), which analyzed the language of a statute fixing a parole interview date and concluded that the legislative intent was to compel a prisoner to serve the mandatory minimum sentence for trafficking in cocaine without regard to any…