TONY ANTHONY RICE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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In this second appeal, the Florida Fifth District Court of Appeal affirmed the trial court's resentencing order but left open the possibility for the appellant to file a motion for correction of jail time credit, as the record was insufficient to determine whether the trial court properly calculated credit for time served.
The court affirmed the trial court's sentencing, finding the record insufficient to justify reversal on the time credit issue. The court determined that the Department of Corrections, not the trial judge, determines the appropriate amount of earned gain time. However, the court left open the possibility for appellant to file a motion under Florida Rule of Criminal Procedure 3.850 alleging sufficient facts to establish a prima facie claim for correction of jail time credit.
[1] A defendant is entitled to credit for all time spent incarcerated awaiting sentencing.
[2] The Department of Corrections, not the trial judge, is responsible for calculating earned gain time.
Previewing 2 of 4 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“to be imprisoned for a term of seven years with credit, and I calculated this with some care, Ms. Brown, based on the total time that he has spent in custody, of five hundred ninety-seven days.”
The trial court's statement of the credit for time served on the dealing in stolen property charge.
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Join FLexlaw to unlock all legal intelligenceTony Rice was initially sentenced in two separate trial court cases with separate guideline scoresheets. After this court reversed and remanded for re…
The full statement of facts, procedural history, and disposition for this case are member content.
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HARRIS, Judge.
This is the second appeal in this case. Appellant was initially sentenced in two trial court cases in separate sentencing proceedings using separate guideline score-sheets. In Rice v. State, 546 So. 2d 784 (Fla. 5th DCA 1989), this court reversed and remanded for resentencing under a single scoresheet.
At resentencing the trial court sentenced appellant for dealing in stolen property to a term of seven years with credit for 597 days. On the conviction for burglary, appellant was sentenced to a concurrent term of seven years with credit for 428 days. Appellant claims the trial court erred in not granting sufficient credit for time served. While there is a strong possibility that appellant is correct, he has not provided us a record that justifies reversal.
At sentencing the trial court stated:
[T]o be imprisoned for a term of seven years with credit, and I calculated this with some care, Ms. Brown, based on the total time that he has spent in custody, of five hundred ninety-seven days.
As to count I of the information, number 88-400, the sentence is seven years with credit for four hundred twenty-eight days.
The amount of time he has spent in custody on the two are not the same.
To this the defense counsel responded:
I don’t know how you got the credit. I wrote DOC. You told me you have to give the gain time for jail and prison in accordance with what they gave you, so I contacted the DOC. So I don’t know how to solve the problem, because they give different times from what you give. You say five hundred ninety-seven days. I don’t know. They say four hundred thirty-three days. Then they say three hundred forty-four days earned gain time.
They didn’t write me back. They just called me up. So I don’t really know how to solve the problem.
The only indication in the record that an error might have been made is that the original judgment for dealing in stolen property dated July 21, 1988, gave appellant credit for 384 days and the amended judgment dated September 22, 1989 (some 428 days later which we assume appellant spent in prison) only increases the credit for time served to 597 days. It is possible that at resentencing the trial court determined that the original credit of 384 days was in error. We do not know. It is also possible that appellant did not receive proper pre-sentence credit for time served on the burglary charge. Once again, though, we do not know for certain. Defense counsel also appears not to know. As she stated in her brief:
Further, unless he had. been released from custody pending the original 1988 sentencing, he is entitled to credit for time served awaiting the original sentencing date also.
The record should, but does not, indicate the dates of incarceration in the county jail and in state prison.
We find the argument that the trial judge should determine the appropriate amount of earned gain time to be without merit. That is the function of the Department of Corrections. See Shelby v. State, 554 So. 2d 24 (Fla. 2d DCA 1989).
Although we affirm the trial judge, it is without prejudice to appellant to file a 3.850 motion alleging sufficient facts to establish a prima facie claim for correction of jail time credit. See Martin v. State, 525 So. 2d 901 (Fla. 5th DCA 1987).
AFFIRMED.
W. SHARP and GOSHORN, JJ., concur.
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Desue v. State, 605 So. 2d 933 (Fla. 1st DCA 1992)…he sentencing order, we do not consider it error for a court, as here, to simply award a defendant with time served and thereafter permit the department to make such calculation. See Wilson v. State, 603 So. 2d 93 (Fla. 5th DCA 1992); Rice v. State, 563 So. 2d 210 (Fla. 5th DCA 1990); Shelby v. State, 554 So. 2d 24 (Fla. 2d DCA 1989); Hampton v. State, 421 So. 2d 775 (Fla. 5th DCA 1982). In regard to Desue’s final argument, the state concedes that the trial court erred by failing to make the written order co…
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Thomas v. State, 648 So. 2d 298 (Fla. 5th DCA 1995)…provisional release supervision program may be canceled as prescribed by department rule. Although appellee contends that it is the function of the Department of Corrections to determine how much gain time a defendant is entitled to, Rice v. State, 563 So. 2d 210 (Fla. 5th DCA 1990), the department’s determination to do so is discretionary. This conclusion is supported by use of the word may rather than shall in the above statute and by the supreme court’s acknowledgement of the state’s “great discretion in…
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Williams v. Wasi, 681 So. 2d 839 (Fla. 4th DCA 1996)…arned 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 POLE…
Authorities Cited
- Martin v. State, 525 So. 2d 901 (Fla. 5th DCA 1987)
- Shelby v. State, 554 So. 2d 24 (Fla. 2d DCA 1989)
- Rice v. State, 546 So. 2d 784 (Fla. 5th DCA 1989)