PATRICK CUMMINGS, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Court reversed an upward departure sentence because the trial judge impermissibly relied on gain time accrual, an administrative matter controlled by the Department of Corrections rather than the judiciary.
A trial judge cannot impose an upward departure sentence based on the defendant's early release due to gain time accrual, as gain time is an administrative matter controlled by the Department of Corrections, not the judicial system.
[1] A trial court cannot impose an upward departure from sentencing guidelines based on gain time accrual, which is an administrative function of the Department of Correction…
Previewing 1 of 1 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Such a departure ground is impermissible because the judicial system does not control gain time. It is an administrative matter controlled by the Department of Corrections.”
Court explaining why the trial judge's sentencing rationale was legally improper.
Defendant Cummings committed burglary while on probation from a grand theft conviction. He pleaded guilty to burglary and admitted the probation viola…
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PER CURIAM.
The defendant appeals an upward departure from the sentencing guidelines. We reverse.
During the defendant’s probation from a grand theft conviction, he committed a burglary. As a consequence, an affidavit of probation violation and an information charging him with burglary were filed. The defendant entered a plea of guilty to the burglary charge and admitted the probation violation. At his sentencing, the assistant state attorney and defense counsel stipulated to a one cell upward departure from the recommended sentence based on the probation violation. The recommended sentence thus was between five and one-half to seven years in prison. The trial judge erroneously imposed sentences totalling eight and one-half years imprisonment on the ground that the defendant committed the substantive offense of burglary at a time when he would still have been incarcerated under his previous split sentence for grand theft had he not been released early due to gain time accrual. Such a departure ground is impermissible because the judicial system does not control gain time. It is an administrative matter controlled by the Department of Corrections. Thompson v. State, 478 So. 2d 462, 464 (Fla. 1st DCA 1985); § 944.275, Fla. Stat. (1987); see Bruton v. State, 510 So. 2d 1243, 1244 (Fla. 1st DCA 1987); Brooks v. State, 490 So. 2d 173, 174 (Fla. 5th DCA 1986). For this reason and based on the state’s confession of error, the sentence is vacated and the cause is remanded for re-sentencing of the defendant in accordance with the applicable sentencing guidelines.
Reversed and remanded.
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State v. Green, 547 So. 2d 925 (Fla. 1989)…F.L.W. 946 (Fla. 1st DCA April 14, 1989) (opinion temporarily withdrawn, 14 F.L.W. 1004 (Fla. 1st DCA April 19, 1989)). As noted in Cole, gain-time is not for the courts but for the Department of Corrections to determine. See also Cummings v. State, 545 So. 2d 448 (Fla. 3d DCA 1989); Thompson v. State, 478 So. 2d 462 (Fla. 1st DCA 1985) (the judicial system never has control over gain-time). Thus, even though the court does not give Green credit for the gain-time, this is not determinative of whether the Depa…
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Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Brooks v. State, 490 So. 2d 173 (Fla. 5th DCA 1986)
- Thompson v. State, 478 So. 2d 462 (Fla. 1st DCA 1985)
- Bruton v. State, 510 So. 2d 1243 (Fla. 1st DCA 1987)