Department Rules Regarding Discipline and Gain Time Forfeiture

In Saucer v. State, 736 So. 2d 10 (Fla. 1st DCA 1998), the First District recently concluded that since the Legislature had "amended section 944.279 by deleting all reference to loss of gain-time and section 944.28(2) and added provisions for disciplinary procedures pursuant to rules of the department provided in section 944.09," the Legislature had sought to clarify that the two sections were separate and independent, as each provided altogether different sanctions - one through Department discipline and the other through gain time forfeiture. Saucer, 736 So. 2d at 12. In reality, however, and as Judge Webster points out in his dissent in Saucer, the amendment made no change in the gain time sanction potential of either statute, and the actual effect of the amendment was to add additional sanctions, such as more restrictive confinement, for the filing of frivolous lawsuits, not to make section 944.28(2)(a) independent of section 944.279. While the amended version of section 944.279 provides that the finding of frivolousness is to be forwarded "to the appropriate institution or facility for disciplinary procedures pursuant to the rules of the department as provided in s. 944.09," that section does not set forth any rules. Section 944.09 is merely the general statutory authority for the Department to promulgate rules. The Department's rules have long provided for gain time forfeiture and the Department has long looked to section 944.28 for its gain time forfeiture authority. See Fla. Admin. Code R. 33-601.104 (previously 33-11.011).