CHESTER TRAVIS BYERS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the sentencing order must specify the type of credit for time served, including both real time and gain time for offenses committed before October 1, 1989.
Chester Byers challenged the credit for time served in two cases. In one case, the credit was correctly reflected. In the other, the sentencing order …
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WHATLEY, Judge.
The appellant, Chester Travis Byers, challenges the amount of credit he was given for time served in two eases. Several issues are raised by the parties on appeal. We find merit only in Byers’ contention that the sentencing order should have specified what type of credit for time served he is entitled to receive.
In case number 92-14493, Byers was sentenced to 15 years’ prison. At the sentencing hearing, the parties stipulated that the credit for time served was 209 days. This is correctly reflected on the sentencing order. Therefore, there was no error regarding the sentencing in this case.
In case number 87-10183, which involved a violation of probation, the sentencing order reflects that Byers is to receive 422 days’ credit for jail time served, in addition to the Department of Corrections’ (DOC) credit for the time he spent in prison. The sentencing order does not indicate whether Byers is to receive both real time and gain time credit for the time he spent in prison.
In the violation of probation case, Byers committed the crimes in 1986. Under State v. Green, 547 So. 2d 925 (Fla.1989), and Tripp v. State, 622 So. 2d 941 (Fla.1993), since the crimes occurred before October 1, 1989, Byers’ credit for time served should include the time actually served and gain time. Under Branton v. State, 646 So. 2d 791 (Fla. 2d DCA 1994), it is the function of the sentencing court to assure compliance with Tripp.
Accordingly, since the sentencing order in this case does not indicate that Byers is to receive credit for time actually served and credit for gain time, the case should be remanded for resentencing. Otherwise, Byers’ conviction and sentence is affirmed.
Affirmed in part and reversed in part.
THREADGILL, A.C.J., and PARKER, J., concur.
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Genorval Slay v. Singletary, 676 So. 2d 456 (Fla. 1st DCA 1996)…a. 1st DCA 1995) are read to suggest that a sentencing court must do more in order to effect a full award of Green credit, we recede from those opinions. Although appellee suggests that this conclusion conflicts with the decisions in Byers v. State, 652 So. 2d 1221 (Fla. 2d DCA 1995), Yourn v. State, 652 So. 2d 1228 (Fla. 2d DCA 1995), and Bacon v. State, 647 So. 2d 332 (Fla. 5th DCA 1994), we decline to so conclude, as none of those cases expressly appear to involve situations in which the sentencing court ut…
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Sheppard v. State, 661 So. 2d 386 (Fla. 1st DCA 1995)…ed to receive credit for [*387] time actually served and gain time credit against a subsequent sentence imposed when probation is revoked. State v. Green, 547 So. 2d 925 (Fla.1989). See also Tripp v. State, 622 So. 2d 941 (Fla.1993); Byers v. State, 652 So. 2d 1221 (Fla. 2d DCA 1995); Branton v. State, 646 So. 2d 791, 792 (Fla. 2d DCA 1994). The state agrees the amendment to section 948.06, Florida Statutes, which permits forfeiture of gain time when the probationary portion of a split sentence is revoked, do…
Authorities Cited
- Tripp v. State, 622 So. 2d 941 (Fla. 1993)
- State v. Green, 547 So. 2d 925 (Fla. 1989)
- Branton v. State, 646 So. 2d 791 (Fla. 2d DCA 1994)