JEFFREY SCOTT MONGIOUVI, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jeffrey Scott Mongiouvi appealed the denial of his motion to correct sentence, alleging the trial court failed to award him credit for time served on a previously imposed prison sentence. The court reversed and remanded, finding the trial court's order inadequate because it failed to clearly establish whether credit was actually awarded and directed the appellant to seek relief from the Department of Corrections rather than determining the matter itself.
The court reversed and remanded because it could not determine from the trial court's order whether credit for time served and gain-time was actually awarded. The trial court may assign the task of calculating gain-time to the Department of Corrections, but if it denies relief on remand, it must attach portions of the files and records that refute the appellant's allegations.
[1] A trial court must determine the exact amount of credit for time actually served on a previously imposed prison sentence, rather than directing the defendant to inquire w…
[2] A trial court may assign the task of looking up gain time amounts to the Department of Corrections.
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 intelligence“Although it acknowledged in its order that the appellant was entitled to receive credit for time served and certain gain-time accumulated on the sentence for sale of cocaine, it directed the appellant to inquire with the Department of Corrections (DOC) to receive the precise amount of credit.”
Establishes the trial court's deficiency in failing to award specific credit and improperly delegating the determination to DOC.
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Join FLexlaw to unlock all legal intelligenceIn August 1989, Mongiouvi received a 3.5-year prison term for sale of cocaine and a consecutive 3-year probationary term for robbery. After his releas…
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PER CURIAM.
Jeffrey Scott Mongiouvi appeals the denial of his motion to correct sentence, which he filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse.
The appellant alleges that the trial court failed to award him credit for the time served on his previously imposed prison sentence. He alleges that he received a sentencing structure similar to that in Tripp v. State, 622 So. 2d 941 (Fla.1993).1
In August 1989, the appellant received a 3)é-year prison term for sale of cocaine in case no. 89-1484, and a consecutive 3-year probationary term for robbery in case no. 89-2004. After his release from prison and upon the subsequent revocation of his probation, the court imposed a 3-year incarcera-tive sentence for the robbery. The appellant claims the trial court failed to award credit for the time actually served and gain-time earned for the sentence on the sale of cocaine.
The trial court denied the motion without attachments. Although it acknowledged in its order that the appellant was entitled to receive credit for time served and certain gain-time accumulated on the sentence for sale of cocaine, it directed the appellant to inquire with the Department of Corrections (DOC) to receive the precise amount of credit. Without a copy of the written sentence, we are unable to determine whether the trial court did in fact award any such credit.
In its response, the state agrees that the appellant is entitled to the benefit of Tripp and urges us to certify the question certified in Bailey v. State, 634 So. 2d 171 (Fla. 1st DCA), review dismissed, 637 So. 2d 233 (Fla.1994). The state further requests that the record be supplemented with the guidelines scoresheet and an affidavit from DOC setting forth the number of days actually served and the number of days allotted for various types of gain-time. We grant the state’s request as it relates to supplementing the record.
With respect to the trial court’s directing the appellant to seek further relief from DOC, the state directs our attention to Thomas v. State, 612 So. 2d 684 (Fla. 5th DCA 1993). In Thomas, 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 the trial court may assign the task of looking up numbers to DOC.
Because we are unable to determine whether the trial court awarded credit for the time previously served and any unforfeit-ed gain-time accumulated on the prison sentence on the sale of cocaine, we reverse the order of denial. On remand, should the trial court again deny relief, it must attach portions of the files and records which refute the appellant’s allegations.
Reversed and remanded.
SCHOONOVER, A.C.J., and LAZZARA and QUINCE, JJ., concur. . Tripp has retroactive application. Jean v. State, 627 So. 2d 592 (Fla. 2d DCA 1993).
Cases With Similar Vibessemantic neighbors from the corpus
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Posey v. The Honorable Stanton S. Kaplan, 660 So. 2d 781 (Fla. 4th DCA 1995)…ssly considered, calculated and awarded at sentencing. Respondent acknowledges that Petitioner’s sentence included findings as to the specific number of days of credit to be awarded in each case against the sentences imposed. In Mongiouvi v. State, 639 So. 2d 686 (Fla. 2d DCA 1994), which arose as a motion to correct sentence pursuant to rule 3.800(a), Florida Rules of Criminal Procedure, the Second District drew a distinction between a sentencing order containing an award of a specific amount of gain time a…
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Yourn v. State, 652 So. 2d 1228 (Fla. 2d DCA 1995)…ssed in State v. Green, 547 So. 2d 925 (Fla.1989). At resentencing, the trial court should instruct the Department of Corrections to give Yourn credit for any unforfeited gain time accumulated on his previous seven-year sentence. Mongiouvi v. State, 639 So. 2d 686 (Fla. 2d DCA 1994). Yourn is also entitled to credit for gain time accrued on his county jail sentence. Perry v. State, 639 So. 2d 1090 (Fla. 2d DCA 1994). The trial court must ensure such credit is given. Yourn also contends that the court failed…
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Elvis Upshaw v. State, 652 So. 2d 1220 (Fla. 2d DCA 1995)…sentence, the court allowed thirty-four days’ credit for time served before imposition of the sentence. It further ordered that he be allowed credit for all time previously served in the Department of Corrections. As we noted in Mongiouvi v. State, 639 So. 2d 686 (Fla. 2d DCA 1994), the trial court may properly assign the task of determining the amount of time to be credited to the Department of Corrections. The court’s written sentence does just that. Moreover, credit for gain time earned on the previous se…
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
- Tripp v. State, 622 So. 2d 941 (Fla. 1993)
- Green v. State, 636 So. 2d 830 (Fla. 5th DCA 1994)
- Thomas v. State, 612 So. 2d 684 (Fla. 5th DCA 1993)
- Jean v. State, 627 So. 2d 592 (Fla. 2d DCA 1993)
- Brocklebank v. E. Fin. Fed. Credit Union, 634 So. 2d 171 (Fla. 3d DCA 1994)
- Bailey v. State, 634 So. 2d 171 (Fla. 1st DCA 1994)