Opinion
Nos. 96-1218, 96-1503.
October 16, 1996.
An appeal from the Fifteenth Judicial Circuit Court, Palm Beach County, Edward A. Garrison, J.
Curtis David Williams, pro se.
No brief filed for appellees.
Appellant argues that the Department of Corrections (DOC) acted without authority in declaring his basic gain-time forfeited after he was returned to jail as a control release violator. Appellant does not dispute that the DOC had the authority to declare his incentive gain-time forfeited. We find no merit in his distinction between basic gain-time and incentive gain-time, holding that both may be subject to forfeiture by the DOC pursuant to section 944.28 (1), Florida Statutes (1995).
Section 944.28 (1) provides that when a control release violator is returned to jail, the DOC may revoke "all gain-time [previously] earned according to the provisions of law." As both basic and incentive gain-time derive from legislative grant, both should be considered "earned according to the provisions of law." See id.
Further, the Legislature specifically refers to all earned gain-time, whether basic or incentive, as a right — one that is granted as a matter of grace and is not automatically retained, but is subject to forfeiture. See § 944.28 (2)(b), (c); Waldrup v. Dugger, 562 So.2d 687 (Fla. 1990); Rice v. State, 563 So.2d 210 (Fla. 5th DCA 1990). As such, the DOC was within its authority and discretion to revoke Appellant's basic gain-time as well as his incentive gain-time pursuant to section 944.28 (1). Accordingly, we find no error and affirm.
GUNTHER, C.J., and POLEN and FARMER, JJ., concur.