DONALD COLE A/K/A DONALD LADAKER, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Cole was convicted of armed burglary and robbery in 1981 and originally sentenced under the Youthful Offender Act to four years imprisonment plus two years community control. After violating community control, he was resentenced to thirty years. The court reduced the sentence to six years—the maximum permissible for a youthful offender—and held that Cole receives credit only for actual time served, not gain time awarded by the Department of Corrections.
A youthful offender resentenced upon revocation is limited to a maximum six-year sentence. A defendant is entitled to judicial credit only for the actual time served in prison, not for gain time awarded by the Department of Corrections.
[1] A youthful offender sentence, whether originally imposed or upon revocation and re-sentencing, is subject to a maximum permissible term.
[2] A defendant is generally entitled to judicial credit only for the time actually served in prison, not for administrative gain time awarded.
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Join FLexlaw to unlock all legal intelligence“On the authority of Dixon v. State, 546 So.2d 1194 (Fla. 3d DCA 1989), we reduce the sentence under review to six years, the maximum permissible, as Dixon holds, for a youthful offender sentence whether originally imposed or upon revocation and re-sentencing.”
Establishes the six-year maximum sentence limit for youthful offenders upon resentencing.
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Join FLexlaw to unlock all legal intelligenceIn 1981, Cole was convicted of armed burglary and robbery and sentenced under the Youthful Offender Act to four years in state prison followed by two …
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SCHWARTZ, Chief Judge.
In 1981, Cole was convicted of armed burglary and robbery and sentenced under the Youthful Offender Act to four years in a state correctional facility, followed by two years of community control.1 With gain time, Cole was released from the state prison before the four-year term expired, and thereupon violated the community control requirement of his sentence by committing a new offense. He was then sentenced on the original charges to thirty years in prison with credit for the actual time he had served. Cole now appeals from the latter sentence.
On the authority of Dixon v. State, 546 So. 2d 1194 (Fla. 3d DCA 1989), we reduce the sentence under review to six years, the maximum permissible, as Dixon holds, for a youthful offender sentence whether originally imposed or upon revocation and re-sentencing. Accord Warren v. State, 542 So. 2d 429 (Fla. 3d DCA 1989). As in Dixon and Warren, we certify that this holding is in direct conflict with Franklin v. State, 526 So. 2d 159 (Fla. 5th DCA 1988).
Although Cole is to be given credit against this six year sentence for time served, we reject his further contention that this credit should include the gain time already allotted by the Department of Corrections during his original incarceration. To the contrary, the general rule is that a defendant is entitled to judicial credit only for the time that he actually served in prison.2 E.g., Butler v. State, 530 So. 2d 324 (Fla. 5th DCA 1988), rev. denied, 539 So. 2d 475 (Fla.1988); State v. Holmes, 360 So. 2d 380 (Fla.1978); Chaitman v. State, 495 So. 2d 1231 (Fla. 5th DCA 1986); cf. Chapman v. State, 538 So. 2d 965 (Fla. 4th DCA 1989) (court could only impose un-served portion of “true” split sentence). If this holding is in conflict with Green v. State, 539 So. 2d 484 (Fla. 1st DCA 1988), we expressly state our disagreement with that decision.
Affirmed in part, reversed in part.
. We take it that this sentence, which is the standard youthful offender form, is the equivalent of the "probationary split sentence” described in Poore v. State, 531 So. 2d 161, 164 (Fla.1988).
. The basis for this holding is that an award of gain time is not for the courts, but for the Department of Corrections to determine. Hall v. State, 493 So. 2d 93 (Fla. 2d DCA 1986); Valdes v. State, 469 So. 2d 868 (Fla. 3d DCA 1985). Thus, our conclusion on this point will not preclude the DOC from again allotting the claimed gain time as an administrative matter.
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State v. Watts, 558 So. 2d 994 (Fla. 1990)…, and so our analysis cannot end there. Although the district court’s decision in Franklin involved primarily double jeopardy considerations, it also interpreted section 958.14 in a manner that conflicts with the instant case and with Cole v. State, 550 So. 2d 1129 (Fla. 3d DCA 1989), review granted, No. 74,299 (Fla. Jan. 16, 1990); Hunnicutt v. State, 549 So. 2d 1138 (Fla. 3d DCA 1989), dismissed, 554 So. 2d 1169 (Fla.1989); Kerklin v. State, 548 So. 2d 689 (Fla. 2d DCA 1989); Haynes v. State, 545 So. 2d 949…
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State v. Warren, 559 So. 2d 1139 (Fla. 1990)…BARKETT, Justice. We have for review Warren v. State, 542 So. 2d 429 (Fla. 3d DCA 1989). We have jurisdiction pursuant to article V, section 3(b)(4) of the Florida Constitution, because the Third District Court in Cole v. State, 550 So. 2d 1129 (Fla. 3d DCA 1989), review granted, No. 74,299 (Fla. Jan. 16, 1990), certified a conflict between its opinions in Cole and Warren with the Fifth District Court’s opinion in Franklin v. State, 526 So. 2d 159 (Fla. 5th DCA 1988), approved in part, 545…
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Cole v. State, 565 So. 2d 1353 (Fla. 1990)…PER CURIAM. We have for review Cole v. State, 550 So. 2d 1129 (Fla. 3d DCA 1989), based on certified conflict with Franklin v. State, 526 So. 2d 159 (Fla. 5th DCA 1988), or express and direct conflict with State v. Green, 547 So. 2d 925 (Fla.1989). We have jurisdiction. Art. V, § 3(b)(3), (4), Fla. Const. Si…
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 (12 total)
- Poore v. State, 531 So. 2d 161 (Fla. 1988)
- State v. Holmes, 360 So. 2d 380 (Fla. 1978)
- Franklin v. State, 526 So. 2d 159 (Fla. 5th DCA 1988)
- Calhoun v. State, 546 So. 2d 1194 (Fla. 1st DCA 1989)
- Green v. State, 539 So. 2d 484 (Fla. 1st DCA 1988)
- Valdes v. State, 469 So. 2d 868 (Fla. 3d DCA 1985)
- Butler v. State, 530 So. 2d 324 (Fla. 5th DCA 1988)
- Warren v. State, 542 So. 2d 429 (Fla. 3d DCA 1989)
- Black v. Unemployment Appeals Comm'n, 493 So. 2d 93 (Fla. 5th DCA 1986)
- Hall v. State, 493 So. 2d 93 (Fla. 2d DCA 1986)