BENJAMIN GREEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The Fifth District Court of Appeal affirmed a trial court's delegation to the Department of Corrections to calculate and apply jail credit and unforfeited gain time following revocation of probation in a split sentence. The court held that delegating ministerial computational tasks to the Department does not violate sentencing statutes when the court has made the substantive sentencing determination.
The trial court committed no error in delegating to the Department the ministerial task of looking up and applying the appropriate jail credit and unforfeited gain time amounts, provided the court itself made the substantive sentencing determination that such credit should be awarded. The delegation is consistent with Florida statutes 944.28(1) and 948.06(6) and does not violate sentencing requirements.
[1] A sentencing court may delegate to the Department of Corrections the ministerial duty of calculating previously awarded gain time forfeited upon revocation of probation.
[2] A trial court may direct the Department of Corrections to credit against a new sentence any unforfeited gain time found to exist.
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Join FLexlaw to unlock all legal intelligence“The trial court committed no error in delegating to the Department the task of looking up the appropriate numbers to apply to the awarded jail credit. Nor did it commit error in directing the Department to credit against the new sentence any gain time that it found unforfeited.”
Establishes the core holding that ministerial computational tasks may be delegated to the Department of Corrections
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Join FLexlaw to unlock all legal intelligenceBenjamin Green received a split sentence with a probationary portion that was revoked. Upon resentencing, the trial court awarded Green credit for 156…
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HARRIS, Chief Judge.
The issue in this case is whether, following the revocation of a probationary portion of a split sentence, the sentencing court may properly delegate to the Department of Corrections the ministerial duty of calculating that portion of the previously awarded gain time forfeited pursuant to section 944.28(1) and 948.06(6), Florida Statutes (1993).
In the case before us the trial judge determined that Green should be given prison credit as follows:
Defendant is allowed credit for 156 days county jail credit served between date of arrest as a violator and date of resentencing. The Department of Corrections shall apply original jail credit awarded and shall compute and apply credit for time served and unforfeited gain time awarded during prior [prison] service.
In effect, therefore, the trial court made the appropriate determination that the defendant should be given credit for time spent in the county jail awaiting the trial and resentencing for his violation as well as the time spent in the county jail before the trial and sentence for the original offense which was credited at the time of the original sentence. The court delegated to the Department the duty of determining the credit given on the original sentence from its files. Further, the court determined that the defendant should be given credit for all unforfeited gain time previously earned during his original period of incarceration. The court recognized that under section 944.28(1), it is the Department that determines whether earned gain time is to be forfeited. The court, therefore, directed the Department to determine whether there remained any unforfeited gain time and, if so, to credit it against the defendant’s sentence.
The trial court committed no error in delegating to the Department the task of looking up the appropriate numbers to apply to the awarded jail credit. Nor did it commit error in directing the Department to credit against the new sentence any gain time that it found unforfeited. The judgment is consistent with section 944.28(1); it is consistent with section 948.06(6); it is consistent with the statewide sentencing form (Florida Rules of Criminal Procedure 3.986); and it is consistent with section 921.0017 (although this section was not applicable at the time of the present sentence).
The procedure used in this case is also consistent with the requirements set out in Wilson v. State, 603 So. 2d 93 (Fla. 5th DCA 1992). In Wilson, the trial court failed to award the defendant credit earned during his previous incarceration. Unforfeited gain time was not the issue. The Department caught the court’s error in failing to properly award earned gain time, determined the appropriate amount and assured Wilson that it would be awarded. In Wilson, we found error in the fact that the trial judge failed to award credit for the previous incarceration, which error could not be cured even by the diligence of the Department. We did not find error in the fact that the Department (instead of the court) was permitted to look up the amount of gain time previously earned.
It is not possible from the stated facts in Thomas v. State, 612 So. 2d 684 (Fla. 5th DCA 1993), to determine if the trial judge actually awarded credit for previous incarceration (including gain time) and only permitted the Department to “add up” the days (which would be similar to our case) or if the court failed to award such credit at all. Because Thomas relied on Wilson, we assume that no credit was awarded by the trial court and, in such event, Thomas was correct. If Thomas is construed to mean that the Department cannot be assigned the task of looking up numbers and applying those numbers to the court’s judgment, then Thomas has misconstrued Wilson.
AFFIRMED.
GRIFFIN, J., concurs.
DAUKSCH, J., dissents, without opinion.
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Citator
Cited By (13 total)
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Bacon v. State, 647 So. 2d 332 (Fla. 5th DCA 1994)…time awarded. Although the trial court can delegate to the Department of Corrections the task of determining the amount of gain time to be credited, the trial court must specifically provide for the award of gain time. See generally Green v. State, 636 So. 2d 830 (Fla. 5th DCA 1994); Wilson v. State, 603 So. 2d 93 (Fla. 5th DCA 1992). Sentence VACATED; cause REMANDED. HARRIS, C.J., and GOSHORN and DIAMANTIS, JJ., concur.…
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Mongiouvi v. State, 639 So. 2d 686 (Fla. 2d DCA 1994)…the court held that the trial court rather than DOC must determine the exact amount of credit for time actually served on a previously imposed prison sentence. The Fifth District, however, has recently clarified the Thomas opinion in Green v. State, 636 So. 2d 830 (Fla. 5th DCA 1994). In Green, the court wrote, “[w]e did not find error in the fact that the Department (instead of the court) was permitted to look up the amount of gain time previously earned.” We adhere to the principle espoused in Green, that t…
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Phillips v. State, 651 So. 2d 203 (Fla. 5th DCA 1995)…on 33-24.005 is not the appropriate remedy. This court has held that it is not error for the Department of Corrections to determine the amount of gain time previously served. See Wilson v. State, 639 So. 2d 1019 (Fla. 5th DCA 1994); Green v. State, 636 So. 2d 830 (Fla. 5th DCA 1994); Wilson v. State, 603 So. 2d 93 (Fla. 5th DCA 1992). However, this court in both Wilson (1992) and Green recognized that although it is not error for the trial court to permit the Department, instead of the court, to look up the…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Wilson v. State, 603 So. 2d 93 (Fla. 5th DCA 1992)
- Thomas v. State, 612 So. 2d 684 (Fla. 5th DCA 1993)