WARREN T. CURRY, PETITIONER,
v.
LOUIE L. WAINWRIGHT, ETC., RESPONDENT
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Warren Curry petitioned for habeas corpus relief seeking to have his statutory gain time calculated under 1975 statutes and to receive credit for time served in Maryland while Florida held a detainer. The First District Court of Appeal denied and dismissed the petition, holding that gain time calculations are within the Department of Corrections' authority and that sentencing credit issues must be appealed through the proper criminal procedure, not habeas review.
The court denied the gain time claim because Curry failed to show his gain time was not being calculated under the 1975 statutes and failed to exhaust administrative remedies. The court dismissed the sentencing credit claim because it lacks jurisdiction; such claims must be raised by appeal from the sentencing court's denial of a Rule 3.850 motion, not through habeas petition.
[1] The Department of Corrections, not the Florida Parole and Probation Commission, is responsible for awarding statutory gain time.
[2] A sentencing court, not the Florida Parole and Probation Commission, is responsible for awarding credit for time spent incarcerated in another jurisdiction when a detaine…
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Join FLexlaw to unlock all legal intelligence“Awarding of statutory gain time is a function of the Department of Corrections and has no bearing on an inmate's presumptive parole release date. Awarding credit for time spent incarcerated in another jail is a function of the sentencing court.”
Establishes the jurisdictional division: gain time is administrative (DOC), sentencing credit is judicial (trial court)
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Join FLexlaw to unlock all legal intelligenceCurry is an inmate seeking credit for time served and adjustment to his gain time calculations. He claims his statutory gain time should be calculated…
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PER CURIAM.
The fifth district indicated that this petition, transferred back to this court with opinion, Curry v. Wainwright, 419 So. 2d 744 (Fla. 5th DCA 1982), is “seeking to require the Florida Parole and Probation Commission to give credit for time served in computing petitioner’s presumptive parole release date.” However, our reading of the petition indicates that Curry is seeking two separate forms of relief, neither of which directly addresses his presumptive parole release date.
First, he asks that his gain time be calculated pursuant to the statutes in effect at the time he committed the crime for which he is now incarcerated. See § 944.27(1), Fla.Stat. (1975).
Second, he asks that his present period of incarceration, pursuant to a Florida conviction, be credited with the time he spent incarcerated in Maryland, during which period Florida had a detainer lodged against him.
Awarding of statutory gain time is a function of the Department of Corrections and has no bearing on an inmate’s presumptive parole release date. Awarding credit for time spent incarcerated in another jail is a function of the sentencing court. The Florida Parole and Probation Commission does not have authority to enter orders under § 921.161, Fla.Stat. (1981); it must rely on Department of Corrections commitment papers when it calculates time served for purposes of computing the presumptive parole release date.
We now consider petitioner’s claims.
First, as regards his claim that he is entitled to have his statutory gain time calculated under the 1975 statutes, we find that Curry has neither shown that his gain time is not being calculated under the 1975 statutes, nor alleged and shown exhaustion of his administrative remedies under Fla. Admin.Code Rule 33-3.07. See Morris v. Wainwright, 409 So. 2d 1161 (Fla. 1st DCA 1982). We therefore deny the petition as to this claim.
Second, as regards his claim that he is not receiving credit on his sentence for time spent incarcerated in Maryland, during which time Florida had a detainer lodged against him, we find that Curry should have appealed the sentencing court’s denial of his Fla.R.Crim.P. 3.850 motion to the Fifth District Court of Appeal.1 We have no jurisdiction and therefore dismiss the petition as to this claim.
McCORD, MILLS and SHIVERS, JJ., concur. . Attached to Curry’s petition is an order from the Circuit Court for Orange County, rendered on April 16, 1982, denying Curry’s motion for post-conviction relief. The order does not advise Curry of his right to appeal, as required by Fla.R.Crim.P. 3.850. We therefore transferred this petition to the fifth district for that court to determine whether the petition should be treated as one seeking a belated appeal, it appearing that the right to appeal had been denied by state action. See Cappetta v. Wainwright, 203 So. 2d 609 (Fla.1967); Hoiiingshead v. Wainwright, 194 So. 2d 577 (Fla.1967); and Flores v. Wainwright, 240 So. 2d 816 (Fla. 2nd DCA 1970).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Hall v. Louie L. Wainwright, 498 So. 2d 670 (Fla. 1st DCA 1986)…terim. Since the above facts numbered (1), (3), and (4) were not alleged in the grievance petition, appellant has not exhausted his administrative remedies pursuant to the provisions of rule 33-3.07, Florida Administrative Code. Curry v. Wainwright, 422 So. 2d 1029 (Fla. 1st DCA 1982). We disagree with the state’s contention that since the award of gain time is discretionary, a petition for writ of mandamus is an improper remedy. While there is no automatic right to receive day-for-day work gain time, Dickin…
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Prangler v. State, 470 So. 2d 105 (Fla. 2d DCA 1985)…ges of the Thirteenth Judicial Circuit, 308 So. 2d 134 (Fla. 2d DCA 1975). However, the award of statutory gain time for good conduct in county jail is a function of the county commissioners. § 951.21, Fla.Stat. (1983). See also Curry v. Wainwright, 422 So. 2d 1029 (Fla. 1st DCA 1982). Thus, a trial court has no authority to prevent gain time. See Valdes v. State, 469 So. 2d 868 (Fla. 3d DCA 1985). Consequently, any waiver of gain time by the defendant was ineffective and the portion of the trial court order r…
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Green v. State, 539 So. 2d 484 (Fla. 1st DCA 1988)…ions (DOC) to grant deductions from sentences in the form of gain time. The awarding of statutory gain time is solely a function of the DOC, and the trial court is without authority to prevent such award or order its waiver. See Curry v. Wainwright, 422 So. 2d 1029 (Fla. 1st DCA 1982); Hall v. State, 493 So. 2d 93 (Fla. 2d DCA 1986). The forfeiture of gain time is governed by § 944.28, Florida Statutes. Subsection (1) of that statute permits the DOC to declare an automatic forfeiture of gain time if a prisone…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Cleveland Hollingshead v. Louie L. Wainwright, 194 So. 2d 577 (Fla. 1967)
- Cappetta v. Louie L. Wainwright, 203 So. 2d 609 (Fla. 1967)
- Flores v. Louie L. Wainwright, 240 So. 2d 816 (Fla. 2d DCA 1970)
- Curry v. Louie L. Wainwright, 419 So. 2d 744 (Fla. 5th DCA 1982)
- Millard Whitfield v. State, 409 So. 2d 1161 (Fla. 1st DCA 1982)
- Holmes v. Fla. Parole & Prob. Comm'n, 409 So. 2d 1161 (Fla. 1st DCA 1982)