WALTER HARVEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 1993-03-19
No. 93-00512
CAMPBELL, A.C.J., and PARKER and PATTERSON, JJ., concur.
616 So. 2d 521 Florida District Court of Appeal, Second District (1993) Caution
Cited by 7 cases

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Synopsis

Walter Harvey, a juvenile prosecuted as an adult under the Youthful Offender Act, appeals summary denial of post-conviction relief and a motion regarding his release date. The court affirmed the denials but addressed Harvey's concern that he was housed in a regular correctional facility rather than a youthful offender institution, directing him to pursue administrative remedies within the Department of Corrections.


Holding

Harvey is not entitled to withdraw his plea or be resentenced based on the plea colloquy demonstrating he understood the consequences; gain-time awards are within the province of the Department of Corrections, not the court; and Harvey has not shown his confinement is unlawful or violates the trial court's sentencing order, so the circuit court lacks jurisdiction to address his housing placement complaint.


Headnotes

[1] A trial court properly denies post-conviction relief when plea colloquy and other documents conclusively demonstrate the defendant is not entitled to withdraw a guilty pl…

[2] The award of gain time is the province of the Department of Corrections, not the court.

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Key Quotes

“These conclusively demonstrate that Harvey is not entitled to withdraw his plea or to be resentenced.”

Establishes that the plea colloquy and documentary evidence conclusively showed Harvey understood the consequences of his guilty plea and cannot withdraw it.

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Facts & Procedural History

Harvey was a juvenile prosecuted as an adult and received a split sentence under the Youthful Offender Act. He filed two motions: one seeking post-con…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Walter Harvey appeals the summary denial of two motions. The first seeks post-conviction relief, based primarily upon Harvey’s contention that he did not understand the consequences of his guilty plea. The second, captioned “motion for correct release date,” deals with the award of gain time.

In denying postconvietion relief, the trial court attached the plea colloquy and other documents. These conclusively demonstrate that Harvey is not entitled to withdraw his plea or to be resentenced. As to the second motion, the trial court correctly found that the award of gain time is the province of the Department of Corrections, not the court. We therefore affirm both orders.

We are concerned, however, about a separate claim made in the "memorandum brief of appellant” that Harvey has submitted for the first time to this court. Harvey is a juvenile who was prosecuted as an adult. The trial court imposed a split sentence under the Youthful Offender Act. § 958.04, Fla.Stat. (1991). Harvey states that he is “presently confined ... in Charlotte Correctional Institution with mentally impaired prisoners and adult habitual offenders as well as other violent felony offenders rather than at a youth camp or institution.”

Section 958.11(2) provides that “[y]outhful offender institutions ... shall contain only those youthful offenders sentenced as such by a court or classified as such by the department.” Charlotte Correctional is not among the youthful offender institutions enumerated in section 33-6.003(1), Florida Administrative Code. Accordingly, the question arises whether Harvey is being incarcerated unlawfully, and if so, what he should do about it.

Upon further review we conclude that Harvey’s brief, assuming we are entitled to consider its allegations, contains no showing of unlawful confinement. The Department of Corrections is authorized under certain circumstances to remove youthful offenders from its specialized facilities, such as when the prisoner has become “a serious management or disciplinary problem.” § 958.11(3)(b). Under section 33-6.003(3), Florida Administrative Code, such transfers are not intended to be “regular,” should be supported by a report detailing the reasons for transfer, and should be reviewed periodically with the intent of returning the prisoner to the youthful offender facility as soon as possible. Harvey does not state why he is now housed at Charlotte Correctional Institute, and does not allege facts which would suggest his transfer was done improperly.

In view of the fact Harvey’s confinement is neither per se unlawful nor an apparent violation of the trial court’s sen tencing order, the Pinellas County Circuit Court has no jurisdiction to address his current complaint. Instead, Harvey should pursue administrative remedies within the Department of Corrections, followed if necessary by a petition for relief by mandamus or habeas corpus in the circuit where he is presently confined.

Affirmed.

CAMPBELL, A.C.J., and PARKER and PATTERSON, JJ., concur.


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Citator

Cited By

  • Taylor v. State, 677 So. 2d 75 (Fla. 4th DCA 1996)
    …served. Denial of the 3.800(a) motion was proper. The DOC is lawfully vested with the authority to consider complaints regarding [*76] miscalculations of credit for time served. Posey v. Kaplan, 660 So. 2d 781 (Fla. 4th DCA 1995); Harvey v. State, 616 So. 2d 521 (Fla. 2d DCA 1993). Further, issues regarding credit for time served are not properly the subject of Rule 3.800(a) motions. Sullivan v. State, 674 So. 2d 214 (Fla. 4th DCA 1996); see Davis v. State, 661 So. 2d 1193 (Fla.1995); State v. Callaway, 658…
  • Posey v. The Honorable Stanton S. Kaplan, 660 So. 2d 781 (Fla. 4th DCA 1995)
    …that he is due. Nevertheless, Petitioner is entitled to consideration of this issue by the trial court. We have considered Green v. State, 636 So. 2d 830 (Fla. 5th DCA 1994), Walker v. State, 619 So. 2d 518 (Fla. 1st DCA 1993), and Harvey v. State, 616 So. 2d 521 (Fla. 2d DCA 1993), relied on by Respondent. However, we deem them inapposite as to the limited issue resolved here. Therefore, the dismissal order is quashed and we withhold the issuance of a writ in anticipation of trial court compliance with thi…
  • Bush v. Fla. Parole Comm'n, 694 So. 2d 872 (Fla. 1st DCA 1997)
    …assertion that his basic and incentive gain time should not have been forfeited upon the revocation of his control release. However, the award and forfeiture of statutory gain time is a function of the Department of Corrections. See Harvey v. State, 616 So. 2d 521 (Fla. 2d DCA 1993); Curry v. Wainwright, 422 So. 2d 1029 (Fla. 1st DCA 1982). As such, appellant’s entitlement to relief, if any, must be obtained through administrative channels followed by, if necessary, the filing of a petition for writ of mandam…

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