FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

No. 1D17-3759

_____________________________

DOYLE HEARD,

Petitioner,

v.

DEPARTMENT OF CORRECTIONS 

and the FLORIDA COMMISSION 

ON OFFENDER REVIEW,

Respondents.

_____________________________

Petition for Writ of Certiorari—Original Jurisdiction.

December 14, 2018

PER CURIAM.

In this certiorari proceeding, inmate Doyle Heard seeks 

review of the circuit court’s denial of his petition for writ of habeas 

corpus in which he challenged (1) the cancellation of his

overcrowding credits and (2) the calculation of the basic gain-time

(BGT) he forfeited after his parole revocations. Like the circuit 

court, we find no merit in either claim. We write only to explain 

why the application of the BGT rule in the 1983 version of section

944.275, Florida Statutes, was not an ex post facto violation in this 

case.
2

Facts

In 1981, Heard was sentenced to consecutive prison terms of 

15 years for strong-arm robbery and 50 years for kidnapping. The 

offenses were committed in 1980.

In 1987, Heard completed his sentence for strong-arm robbery 

and started serving his sentence for kidnapping. The Department

of Corrections awarded Heard a lump sum of 6,000 days of BGT 

for this sentence based on the formula in the 1983 version of 

section 944.275, Florida Statutes.

In 1999, Heard was released on parole. After Heard’s parole 

was revoked in 2001, the Department forfeited all 6,000 days of 

the BGT Heard had been awarded. However, the Department 

subsequently “re-audited” Heard’s sentence and reduced the 

forfeiture to a prorated amount of BGT attributable to the period 

that Heard served in prison prior to his release on parole.

In 2011, Heard was again released on parole. After Heard’s 

parole was revoked in 2014, the Department forfeited the prorated 

amount of BGT attributable to the time he served between his 

return to prison after his first parole violation and his second 

release on parole.

In 2016, Heard filed a petition for writ of habeas corpus 

challenging the Department’s calculation of his sentence. Among 

other things, Heard argued that his sentence would have expired 

had the Department forfeited his BGT using the formula in the 

version of section 944.275 that was in effect in 1980 when he 

committed his offenses. The circuit court rejected this and all 

other claims raised in the habeas petition. Heard timely sought 

review of the circuit court’s decision by filing a petition for writ of 

certiorari in this Court pursuant to Sheley v. Florida Parole 

Commission, 703 So. 2d 1202 (Fla. 1st DCA 1997).

 Analysis

At the time of Heard’s offenses in 1980, BGT was awarded 

under the so-called “3-6-9 formula.” This formula provided for a

monthly award of BGT at a rate of 3 days per month for the first 
3

and second years of the defendant’s sentence, 6 days per month for 

the third and fourth years, and 9 days per month afterwards. See

§ 944.275(1), Fla. Stat. (1979).

In 1983, section 944.275 was amended to provide for the lump 

sum award of BGT at a rate of 10 days for each month of the 

defendant’s sentence (“the 10-day formula”). See § 944.275(4)(a), 

Fla. Stat. (1983); see also Fla. Admin. Code R. 33-603.402(3)(c) (“In 

order to establish an initial tentative release date, [BGT] awards 

are made in a lump sum upon entry into the [D]epartment’s 

custody.”). This new formula was retroactively applied to “all 

sentences imposed for offenses committed on or after July 1, 1978.” 

§ 944.275(6)(a), Fla. Stat. (1983).

Heard does not challenge the Department’s use of the 10-day 

formula to calculate the award of his BGT. Instead, his challenge 

is limited to the use of that formula to calculate the amount of BGT

forfeited after his parole revocations. Specifically, Heard argues 

that because the use of the 10-day formula results in the forfeiture 

of more BGT than would have been forfeited under the 3-6-9 

formula, the retroactive application of the 10-day formula amounts 

to an ex post facto violation.

“Two elements must be present in order for a criminal or penal 

law to be ex post facto: (1) the law must be retrospective, that is, 

it must apply to events occurring before its enactment; and (2) the 

law must disadvantage the offender.” Avera v. Barton, 632 So. 2d 

167, 168-69 (Fla. 1st DCA 1994) (citing Waldrup v. Dugger, 562 So. 

2d 687, 691 (Fla. 1990)).

Here, Heard was not disadvantaged by the use of the 10-day 

formula to calculate the amount of BGT forfeited because the same 

formula was used to calculate the award of BGT and the 

Department only forfeited the amount of BGT attributable to the 

time served by Heard prior to his releases on parole. The fact that 

Heard forfeited more BGT (2,193 days) than he would have 

forfeited under the 3-6-9 formula (1,928 days) is not determinative 

because he was awarded more BGT (6,000 days) than he would 
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have earned under the 3-6-9 formula (5,400 days).

∗

 Avera and 

Burks v. McNeil, 984 So. 2d 619 (Fla. 1st DCA 2008), are not 

contrary authority.

In Avera, the inmate was sentenced in 1979 to 30 years in 

prison. 632 So. 2d at 168. In 1981, the inmate escaped and was 

recaptured the same day. Id. The Department retrospectively 

applied the 10-day formula to calculate the amount of BGT

forfeited by the inmate. Id. We held that the Department’s 

application of the 10-day formula to the inmate in that case was 

an ex post facto violation because the inmate would have forfeited 

a lesser amount of BGT under the 3-6-9 formula in effect “at the 

time of his escape and escape conviction.” Id. at 169.

Section 944.28(1), Florida Statutes, which provides for the 

forfeiture of gain-time if the prisoner escapes or his parole is 

revoked, allows the Department to forfeit all gain-time earned 

prior to the escape or release on parole. The triggering event for 

the forfeiture in Avera was his escape in 1981, and at that time, 

the 10-day formula had not yet been enacted. Thus, it was an 

improper retrospective application of the law to calculate the 

forfeiture under the 10-day formula. By contrast, in this case, 

Heard’s triggering events—the revocations of his parole—occurred 

long after the 10-day formula was in effect.

In Burks, the Department forfeited the entire lump sum of 

BGT awarded to the inmate under the 10-day formula. 944 So. 2d 

at 620. We held this was error because, under the version of 

section 944.275 in effect at the time of the inmate’s offense in 1981, 

BGT was awarded on a monthly basis. Id. Here, the Department 

did not forfeit the entire lump sum of BGT awarded to Heard under 

the 10-day formula. Instead, it only forfeited the portion of the 

award attributable to the months that he served prior to his 

releases to parole. This approach is consistent with Burks.

 ∗ It is also noteworthy that Heard’s tentative release date 

using the 10-day formula to award and forfeit BGT is almost a year 

earlier than it would be if the 3-6-9 formula was used to award and 

forfeit BGT.
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Conclusion

In sum, because Heard was not disadvantaged by the use of 

the 10-day formula to calculate the amount of BGT he forfeited

after his parole violations, the circuit court correctly rejected his 

ex post facto claim. Accordingly, the petition for writ of certiorari 

is denied on the merits.

DENIED.

WETHERELL, ROWE, and WINOKUR, JJ., concur.

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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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Doyle Heard, pro se, Petitioner.

Rana Wallace, General Counsel, and Mark Hiers, Assistant 

General Counsel, Florida Commission on Offender Review, 

Tallahassee; Kenneth S. Steely, General Counsel, and Gayla 

Grant, Assistant General Counsel, Florida Department of 

Corrections, Tallahassee, for Respondents.