STEVEN DOUGLAS WILSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court erred in refusing to award full credit for time served on the incarcerative portion of the original probationary split sentence.
[1] A trial court must award credit for time served on the incarcerative portion of an original probationary split sentence.
[2] The award of jail time credit is a judicial task to be accomplished at sentencing, not an administrative function to be accomplished post-sentencing.
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Join FLexlaw to unlock all legal intelligenceAppellant was sentenced to concurrent split sentences for burglary, which exceeded the statutory maximum. After violating probation, he received a new…
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PETERSON, Judge.
Steven Douglas Wilson appeals the summary denial of his motion for post-conviction relief pursuant to rule 3.850, Florida Rules of Criminal Procedure. We reverse only on the trial court’s refusal to give full credit for time served on the incarcerative portion of the original probationary split sentence and affirm on all other issues.
Wilson originally was sentenced on ten counts of burglary of a structure to concurrent split sentences of three and one-half years’ incarceration followed by two years’ community control. The sentence exceeded the statutory penalty of five years for third-degree felonies. After serving the initial period of incarceration, he twicé violated the terms of community control before the expiration of five years from the time of original sentencing and was finally sentenced to five years’ incarceration following revocation of community control. Wilson received credit for county jail time served following his arrest for violation of the terms of community control, but none for the original period of incarceration.
The Department of Corrections found the error and communicated assurances that Wilson would receive the appropriate credits. Nevertheless, Wilson is entitled to a judicial award of proper jail time credit. § 921.161(1), Fla.Stat. (1991). The Department of Corrections most likely will be enlisted by the court to calculate the credit, but the award of the credit is a judicial task to be accomplished at sentencing rather than an administrative function to be accomplished post-serttencing. The Department of Corrections cannot correct an illegal sentence or render the illegality harmless; the trial court is required to accomplish the task. Jones v. State, 570 So. 2d 345 (Fla. 5th DCA 1990).
We affirm the denial of all issues raised in the 3.850 motion except on the issue of the award for jail time served and remand for the purpose of making the award.
REVERSED in part; AFFIRMED in part; and REMANDED.
GOSHORN, C.J., and COWART, J., concur.
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Desue v. State, 605 So. 2d 933 (Fla. 1st DCA 1992)…ion report, so that such amount can be stated in the 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…
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Genorval Slay v. Singletary, 676 So. 2d 456 (Fla. 1st DCA 1996)…esult in appellant’s release from custody.1 Appellee argued, however, that the language utilized by the sentencing court in its written judgment and sentence was insufficient to effect an award of that credit, and in accordance with Wilson v. State, 603 So. 2d 93 (Fla. 5th DCA 1992), the Department of Corrections lacks authority to correct or modify an illegal sentence. Thus, while appellee conceded appellant’s entitlement to credit and his consequent entitle [*457] ment to release, it argued that the trial…
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Pearson v. Moore, 767 So. 2d 1235 (Fla. 1st DCA 2000)…. 3d DCA 1998); Knight v. State, 611 So. 2d 602, 603 (Fla. 2d DCA 1993). DOC cannot undo a bargain the state attorney’s office has struck. At issue is the separation of powers between the judicial and executive branches. See, e.g., Wilson v. State, 603 So. 2d 93, 94 (Fla. 5th DCA 1992). There, when resentenced in the wake of a violation of community control, Wilson did not receive full credit for jail time he had previously served. He filed a motion under Florida Rule of Criminal Procedure 3.850 seeking jai…
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- Jones v. State, 570 So. 2d 345 (Fla. 5th DCA 1990)