STEPHEN HARRISON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Stephen Harrison challenges the Department of Corrections' denial of prison time credit on one of two concurrent sentences following probation revocation. The court holds that under Tripp v. State, Harrison is entitled to credit for time previously served in prison on both concurrent sentences and reverses the trial court's denial of his petition.
Yes. Under Tripp v. State, because the probationary term in Case No. 88-418 was consecutive to the prison sentence in Case No. 88-1002, Harrison is entitled to credit for the 1406 days previously served in prison when resentenced following probation revocation in Case No. 88-418.
[1] A defendant is entitled to credit for prison time previously served when resentenced following revocation of probation, even if the original probationary term was consecu…
[2] A defendant is entitled to credit for prison time previously served when resentenced following revocation of probation, even if the original probationary term was consecu…
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Join FLexlaw to unlock all legal intelligence“The probationary term imposed in Case No. 88-418 was consecutive to the prison sentence given at the same time in Case No. 88-1002. Therefore, under Tripp, appellant was entitled to credit for the time served in prison for Case No. 88-1002, when he was resentenced following revocation of probation in Case No. 88-418.”
Establishes the legal principle that credit for prior prison time applies when the probationary term is consecutive to the prison sentence.
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Join FLexlaw to unlock all legal intelligenceHarrison was sentenced on the same day to five years in prison followed by ten years of probation in Case No. 88-1002 and to ten years of probation (c…
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ERVIN, Judge.
Appellant, Stephon Harrison, challenges the trial court’s order denying his petition for writ of habeas corpus,1 which alleged that the Department of Corrections had failed to award him proper credit for prison time previously served. We agree that appellant is entitled to credit under Tripp v. State, 622 So. 2d 941 (Fla.1993), and, therefore, reverse and remand for further proceedings.
Appellant was sentenced on the same day to five years in prison followed by ten years of probation in Case No. 88-1002 and to ten years of probation in Case No. 88-418, which was made to run concurrently with the probationary term imposed in Case No. 88-1002.2 Appellant was released from prison after serving 1406 days, and he began serving the concurrent probationary terms. He subsequently violated probation, and, upon revocation, he was sentenced to concurrent terms of ten years of incarceration with credit for previous jail and prison time. While appellant’s sentence in Case No. 88-1002 was credited with the 1406 days previously served in prison, no similar credit was applied to his sentence in Case No. 88-418. After exhausting his administrative remedies, appellant filed the instant petition.
The probationary term imposed in Case No. 88-418 was consecutive to the prison sentence given at the same time in Case No. 88-1002. Therefore, under Tripp, appellant was entitled to credit for the time served in prison for Case No. 88-1002, when he was resentenced following revocation of probation in Case No. 88-418. Bailey v. State, 634 So. 2d 171 (Fla. 1st DCA), review dismissed, 637 So. 2d 233 (Fla.1994). Under the circumstances, appellant has demonstrated a clear legal right on his part, an indisputable legal duty on the part of the Department of Corrections, and the lack of other adequate remedy, thereby entitling him to mandamus relief.
The trial court’s order is REVERSED and the case REMANDED with directions to grant the writ of mandamus.
MICKLE and LAWRENCE, JJ., concur. . The trial court should have considered appellant’s petition as one for mandamus, rather than habeas corpus, because, even with the application of a 1406-day credit in Case No. 88-418, he is not entitled to immediate release. See Fox v. Singletary, 635 So. 2d 69 (Fla. 1st DCA 1994).
. Appellant contends that he was given the same sentence in both cases, which is supported by the written plea agreement; however, the sentencing transcript reflects that the above sentences were those actually imposed.
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Andrews v. The Fla. Parole Comm'n & The Fla. Dep't of Corr., 768 So. 2d 1257 (Fla. 1st DCA 2000)…us petition, it appears that appellant would be entitled to immediate release from incarceration if properly credited with the time he is seeking, the petition should be treated as a petition for writ of habeas corpus.”). See also Harrison v. State, 667 So. 2d 382, 383 (Fla. 1st DCA 1995); Cohen v. Vendrell, 535 So. 2d 320, 322 (Fla. 3d DCA 1988); Diggs v. Department of Corrections, 503 So. 2d 412, 414 (Fla. 1st DCA 1987). . Under two consecutive thirty-month sentences the trial court imposed on April 1 and…
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Pollett v. Fla. Unemployment Appeals Comm'n, 928 So. 2d 469 (Fla. 1st DCA 2006)…v. Florida Unemployment Appeals Comm’n, 881 So. 2d 89, 91 (Fla. 1st DCA 2004). The desired remedy is an eviden-tiary hearing to determine whether the lateness is attributable to the Commission. E.g., Applegate v. Nat’l Health Care Affiliates, Inc., 667 So. 2d 382 (Fla. 1st DCA 1995). Here, Appellant is entitled to a hearing to determine whether she received erroneous information, and if she did, what bearing the erroneous information had on the timeliness of her appeal. Accordingly, we REVERSE and REMAND f…
Authorities Cited
- Tripp v. State, 622 So. 2d 941 (Fla. 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)
- FOX v. Singletary, 635 So. 2d 69 (Fla. 1st DCA 1994)