WILLIAM MOENING, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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William Moening appealed his resentencing for grand theft, challenging the trial court's failure to award him credit for time served. The appellate court affirmed the resentencing but remanded to correct the credit-for-time-served calculation, requiring the trial court to grant credit for time spent in custody but excluding time on control release.
The court affirmed the resentencing judgment but reversed and remanded for correction of the credit for time served. Moening is entitled to credit for time spent in jail and in custody of the Department of Corrections (approximately 10½ months), but not for time spent on control release, which does not constitute coercive deprivation of liberty.
[1] A defendant is entitled to credit for time served in state custody while awaiting sentencing or disposition of an appeal.
[2] Time spent on control release (CRD) is not considered a coercive deprivation of liberty and therefore does not warrant credit towards a sentence.
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Join FLexlaw to unlock all legal intelligence“Because CRD is not "coercive deprivation of liberty," Moening is not entitled to receive credit for time he spent in this program.”
Establishes the legal standard that control release time does not qualify for credit-for-time-served.
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Join FLexlaw to unlock all legal intelligenceMoening was originally convicted of grand theft second degree and sentenced to 15 years in the Department of Corrections. This court reversed and rema…
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THOMPSON, Judge.
William H. Moening appeals his resentencing for the offense of grand theft, a felony of the third degree.1 At the time of his resentencing, the trial court did not give him credit for time he had served in state custody. We affirm the judgment and sentence, but remand for correction of the amount of credit for time served.
Moening was originally convicted of grand theft second degree2 and sentenced to a departure sentence of 15 years in the Department of Corrections (“DOC”). He was also required to pay $16,800 of restitution. This court reversed the judgment and sentence and remanded for “entry of a judgment of guilt to a third degree felony and imposition of an appropriate sentence therefor.” Moening v. State, 615 So. 2d 791, 792 (Fla. 5th DCA 1993). At resentencing, Moening was sentenced to serve a five year term of probation. Moening was not given credit for time served while awaiting sentencing or time served in the DOC. As to this point, the state concedes error. They admit that Moening should receive at least 10½ months credit for time served. Brown v. State, 584 So. 2d 209, 210 (Fla. 1st DCA 1991); McCray v. State, 517 So. 2d 770 (Fla. 2d DCA 1988); Franklin v. State, 515 So. 2d 400, 401 (Fla. 1st DCA 1987).
In addition to the 10½ months credit for time served in state custody, Moening seeks to obtain credit for the one year he served on control release, CRD,3 after being released from the custody of the DOC and while awaiting disposition of his appeal. Because CRD is not “coercive deprivation of liberty,” Moening is not entitled to receive credit for time he spent in this program. See Tal-Mason v. State, 515 So. 2d 738, 739 (Fla. 1987); State v. Peters, 526 So. 2d 747, 748 (Fla. 1st DCA 1988). This case is remanded with directions that Moening be given credit for time served in jail and in custody of the DOC, excluding time spent on CRD. Upon resentencing, the combined disposition of incarceration and probation may not exceed the statutory maximum. State v. Holmes, 360 So. 2d 380 (Fla.1978); Ferguson v. State, 594 So. 2d 864 (Fla. 5th DCA 1992), disapproved of on other grounds, Bradley v. State, 631 So. 2d 1096 (Fla.1994).
JUDGMENT AFFIRMED; SENTENCE REVERSED and REMANDED with directions.
PETERSON and DIAMANTIS, JJ., concur. . § 812.014(2)(c), Fla.Stat. (1991).
. § 812.014(2)(b), Fla.Stat. (1991).
.See § 947.146, Fla.Stat. (1991). Control release is a form of administrative supervised release used by the Parole Commission to maintain the state prison population below 97.5 percent of its lawful capacity.
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Citator
Cited By
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Elmo H. GAY v. Singletary, 700 So. 2d 1220 (Fla. 1997)…9 (emphasis added). We believe time spent under Control Release supervision is similar to time spent on probation and therefore do not consider it a “coercive deprivation of liberty” for purposes of entitlement to credit.4 See also Moening v. State, 643 So. 2d 1201, 1202 (Fla. 5th DCA 1994) (holding inmate not entitled to time spent on Control Release under analysis in Tal-Mason ).5 The Parole Commission’s authority concerning Control Release is described in section 947.146 and the provisions referred to ther…
Authorities Cited
- State v. Holmes, 360 So. 2d 380 (Fla. 1978)
- Tal-Mason v. State, 515 So. 2d 738 (Fla. 1987)
- L.C. Bradley v. State, 631 So. 2d 1096 (Fla. 1994)
- Richard A. Bolt, M.D. v. Smith, 594 So. 2d 864 (Fla. 5th DCA 1992)
- Brown v. State, 584 So. 2d 209 (Fla. 1st DCA 1991)
- Franklin v. State, 515 So. 2d 400 (Fla. 1st DCA 1987)
- McCRAY v. State, 517 So. 2d 770 (Fla. 2d DCA 1988)
- Fla. Nat'l Bank v. Flagship Bank OF Jacksonville, 526 So. 2d 747 (Fla. 1st DCA 1988)
- Moening v. State, 615 So. 2d 791 (Fla. 5th DCA 1993)