CLINTON TROY TOSCHLOG, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The court held that the trial court erred in denying the appellant's motion to correct his sentence because there was no record support for the forfeiture of gain time and the relevant statutory amendment was not retroactive.
[1] A defendant is entitled to credit for previously earned gain time when the Department of Corrections has not declared a forfeiture of that gain time.
[2] A statutory amendment that authorizes the forfeiture of earned gain time does not retroactively apply to offenses committed prior to its enactment.
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 intelligenceAppellant was sentenced, released from prison, and later found to have violated community control. He sought credit for his full original prison sente…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Gain Time Credit cases and more on FLexlaw
PER CURIAM.
Clinton Troy Toschlog appeals the denial of his motion to correct his sentence.
On January 30, 1990, the appellant was sentenced to three years incarceration followed by one year community control and two years probation. On July 30, 1990, the appellant was released from prison, having been given credit for the full three year sentence. Approximately seven months after the appellant’s release from prison, an affidavit of violation of community control was filed. On July 12, 1991, the appellant was found to have violated his community control and was sentenced to six years incarceration and given credit for time served.
The appellant filed his motion to correct sentence seeking credit from the circuit court for the full three year prison sentence. It is alleged in the motion that the Department of Corrections has given the appellant credit for only the actual time he was incarcerated.
In its consideration of the motion, the circuit court correctly determined that the appellant sought credit for his previously earned gain time pursuant to State v. Green, 547 So. 2d 925 (Fla.1989). The court found, however, that since the appellant was sentenced for a violation of his community control, section 944.28, Florida Statutes (1991), authorizes the Department of Corrections to declare a forfeiture of all earned gain time, and so denied the appellant’s motion.
We find that the court erred in denying the appellant's motion. First, there is no support in the record for the court’s determination that the Department of Corrections had forfeited the appellant’s gain time. In fact, an affidavit inappropriately filed in this court states that the gain time was not forfeited by the Department of Corrections. Second, the 1991 amendment to section 944.28 does not retroactively apply to the appellant as his offense occurred prior to its enactment.
Accordingly, we reverse the trial court’s denial of the appellant’s motion to correct sentence and remand to the court for further proceedings.
CAMPBELL, A.C.J., and SCHOONOVER and BLUE, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
L.C. Bradley v. State, 616 So. 2d 1156 (Fla. 2d DCA 1993)…So. 2d 925 (Fla.1989), noted that under section 944.28, Florida Statutes (1987), the trial court was without statutory authority to forfeit gain time upon a revocation of [*1157] probation. In accordance with Green, this court, in Toschlog v. State, 604 So. 2d 22 (Fla. 2d DCA 1992), reversed the trial court’s denial of the defendant’s motion to correct sentence because the trial court failed to give the defendant credit for gain time after his community control was revoked. This court held that Green applied…
-
Harrington v. State, 609 So. 2d 712 (Fla. 4th DCA 1992)…for good conduct, as provided by law, from the date on which he is returned to prison. The provisions of such a statute cannot be applied retroactively. Cf. Miller v. Florida, 482 U.S. 423, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987); Toschlog v. State, 604 So. 2d 22 (Fla. 2d DCA 1992). Therefore, the sentence is reversed and remanded for modification of the sentence accordingly. GLICKSTEIN, C.J., and DOWNEY and STONE, JJ., concur.…
-
Alvarez v. State, 626 So. 2d 265 (Fla. 2d DCA 1993)…ommission of the offense. Since the robbery in the instant case was committed on October 3, 1986, before the effective date of either statute, we conclude that under Bradley defendant’s gain time was improperly forfeited. See also Toschlog v. State, 604 So. 2d 22 (Fla. 2d DCA 1992). Resentencing is therefore required. As in Summers, we certify to the supreme court the following as a question of great public importance: MUST A TRIAL COURT, UPON REVOCATION OF PROBATION, CREDIT PREVIOUS TIME SERVED ON PROBATI…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Green, 547 So. 2d 925 (Fla. 1989)