ROBERT HARRINGTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Trial court erred by failing to credit appellant with earned and incentive gain time from his earlier incarceration when sentencing him upon probation violation, and cannot retroactively apply a statute forfeiting such gain time for offenses committed before the statute's effective date.
A trial court must fully credit an offender with earned and incentive gain time from prior incarceration when sentencing upon probation revocation, and cannot retroactively apply a statute that would forfeit such gain time for offenses committed before the statute's effective date.
[1] A trial court must credit an offender with all earned and incentive gain time from prior incarceration when imposing a sentence upon probation revocation, not merely time…
[2] A statute forfeiting gain time upon probation revocation cannot be applied retroactively to offenses committed before the statute's effective date.
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Join FLexlaw to unlock all legal intelligenceAppellant was sentenced upon violation of probation for offenses committed in January and February 1989. The trial court credited him only for time ac…
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PER CURIAM.
The appellant, sentenced upon a violation of probation, correctly argues that the sentence imposed fails to fully credit him with earned and incentive gain time awarded incident to an earlier incarceration portion of his sentence. Rather, the trial court specified a credit only for the time actually served prior to his probationary term. Failure to fully credit appellant with such gain time is error. E.g., State v. Green, 547 So. 2d 925 (Fla.1989); Barfield v. State, 599 So. 2d 259 (Fla. 4th DCA 1992).
All of the offenses for which appellant was sentenced upon the revocation of his probation were committed in January and February of 1989, prior to the effective date of section 948.06(6), Florida Statutes, applied by the trial court, which provides:
Any provision of law to the contrary notwithstanding, whenever probation ... is violated and the probation ... is revoked, the offender, by reason of his misconduct, may be deemed to have forfeited all gain-time or commutation of time for good conduct, as provided by law, earned up to the date of his release on probation.... This subsection does not deprive the prisoner of his right to gain-time or commutation of time 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.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Echols v. State, 660 So. 2d 782 (Fla. 4th DCA 1995)…674 (Fla. 4th DCA 1994). The application of State v. Green, 547 So. 2d 925 (Fla.1989), controls disposition of gain time issues arising from offenses committed before the enactment of section 948.06(6). Webb, 630 So. 2d at 675; Harrington v. State, 609 So. 2d 712 (Fla. 4th DCA 1992). The governing authority allows a defendant who violates probation following incarceration to receive credit against his new sentence, not only for time served, but also for earned gain time. Green, 547 So. 2d at 927; Bradley, 63…
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Schiffer v. State, 617 So. 2d 357 (Fla. 4th DCA 1993)…ause the offense for which he was convicted occurred prior to the effective date of section 948.06(6), Florida Statutes, he is entitled to credit to the full [*358] five years regardless of the time he was actually incarcerated. Harrington v. State, 609 So. 2d 712 (Fla. 4th DCA 1992). We also agree with defendant’s contention that the trial court erroneously believed it had to provide written reasons to justify a downward departure. We have recently held to the contrary. State v. Hogan, 611 So. 2d 78 (Fla. 4…
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Rosetta Slater Jackson and Frank Steven Davis v. State, 619 So. 2d 431 (Fla. 1st DCA 1993)…he trial court discretion not to award such gaintime, appellant’s prior offense was committed before the effective date of the amendments, and thus the amendments do not apply. Smith v. State, 613 So. 2d 603 (Fla. 5th DCA 1993); Harrington v. State, 609 So. 2d 712 (Fla. 4th DCA 1992). Accordingly, we vacate the sentence in case number 89-4483 and remand for resentencing. ZEHMER, ALLEN and WEBSTER, JJ., concur.…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Miller v. Florida, 482 U.S. 423 (U.S. 1987)
- State v. Green, 547 So. 2d 925 (Fla. 1989)
- Toschlog v. State, 604 So. 2d 22 (Fla. 2d DCA 1992)
- Barfield v. State, 599 So. 2d 259 (Fla. 4th DCA 1992)