TYLER SMITH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 4th DCA | 1996-04-10
No. 95-3312
KLEIN and GROSS, JJ., concur., KLEIN, STEVENSON and GROSS, JJ., concur.
682 So. 2d 147 Florida District Court of Appeal, Fourth District (1996) Positive Treatment
Cited by 12 cases

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Synopsis

Tyler Smith appealed the denial of his rule 3.800 motion seeking credit for earned gain time in addition to actual prison time served after re-sentencing for violating probation. The court affirmed the trial court's denial but clarified that under Florida law, sentencing orders crediting "time served" for pre-October 1, 1989 offenses automatically include earned gain time, and directed Smith to pursue mandamus relief if the Department of Corrections failed to provide the credit.


Holding

Sentencing orders awarding credit for "time served" for offenses committed prior to October 1, 1989 necessarily encompass earned gain time by operation of law, requiring no further directive. The trial court properly denied the rule 3.800 motion as the sentence was not illegal, but the defendant may pursue mandamus relief to compel the Department of Corrections to include earned gain time in calculating the release date.


Headnotes

[1] A sentencing order awarding credit for prison time served for offenses committed prior to October 1, 1989, necessarily includes earned gain time by operation of law.

[2] A petition for writ of mandamus is the appropriate remedy to compel the Department of Corrections to include earned gain time in calculating a release date when a sentenc…

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Key Quotes

“once the trial court orders credit for prison time served, the defendant becomes entitled to an allowance for earned gain time by operation of law”

Establishes the legal principle that earned gain time is automatically included in time-served credits for pre-1989 offenses

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Facts & Procedural History

Smith was re-sentenced to prison after violating the probationary portion of a split sentence. The Department of Corrections informed him it would cre…

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Opinion of the Court
STEVENSON, J.

STEVENSON, J.

Appellant was re-sentenced to prison after he violated the probationary portion of a split sentence. By letter, the Department of Corrections (D.O.C.) informed appellant that he would be given credit for the actual time he spent in prison, but that he would not be credited with unforfeited gain time because it was not expressly provided for in the sentencing order. Appellant filed this rule 3.800 motion with the trial court alleging that he is entitled to credit for his earned gain time in addition to the actual time that he served in prison. The trial court denied appellant’s motion on the basis that it had no jurisdiction over the D.O.C. located in the county where appellant was incarcerated. We affirm the trial court’s ruling without prejudice for appellant to file a petition for writ of mandamus in the appropriate court requesting that the D.O.C. be ordered to include earned gain time in calculating his release date.

This court has held that sentencing orders which award credit for prison time served for offenses committed prior to October 1, 1989, necessarily encompass earned gain time because once the trial court orders credit for prison time served, the defendant becomes entitled to an allowance for earned gain time by operation of law. See Smith v. State, 659 So. 2d 1222 (Fla. 4th DCA 1995).1' In the instant case, appellant committed the original crimes prior to October 1,1989. The trial court’s order provided that appellant was entitled to credit for all time previously served in the D.O.C. prior to resentencing. Accordingly, no further directive was required to enable the D.O.C. to compute a release date which recognized all of appellant’s earned gain time.2

Nevertheless, we affirm the trial court’s order denying appellant’s 3.800 motion because the sentence is not “illegal.” However, we affirm without prejudice to appellant exercising his right to file a petition for writ of mandamus in the trial court if he is not given allowance for his unforfeited gain time after providing the D.O.C. with a copy of this opinion and Smith v. State, 659 So. 2d 1222 (Fla. 4th DCA 1995). A petition for mandamus in the trial court is the appropriate remedy to permit the trial court to order the D.O.C. to implement the credit awarded to a criminal defendant pursuant to a sentencing order. See Posey v. Kaplan, 660 So. 2d 781 (Fla. 4th DCA 1995).

AFFIRMED.

KLEIN and GROSS, JJ., concur. . In State, v. Green, 547 So. 2d 925 (Fla.1989) the supreme court held that a defendant sentenced for a violation of the probationary portion of a split sentence is entitled to credit for all time served, including earned gain-time. State v. Green applies to all cases where the defendant committed the original offense prior to October 1, 1989, the effective date of the gain time forfeiture provisions of Chapter 89-531, Laws of Florida. See Thomas v. State, 605 So. 2d 1286 (Fla. 4th DCA 1992).

. In Tripp v. State, 622 So. 2d 941, 942 (Fla. 1993), the supreme court clarified Green and held that "credit for time served” includes time actually served and "earned” gain time, but does not include “provisional credits" or "administrative gain time” which is used to alleviate prison overcrowding and is not related to the defendant’s satisfactory behavior while in prison.

Other
PER CURIAM.

PER CURIAM.

We deny the motion for rehearing and rehearing en banc. We grant the motion for certification to the extent that we certify the following question to the supreme court, which question was recently certified by the first district in Slay v. Singletary, 676 So. 2d 456 (Fla. 1st DCA 1996):

WHEN A DEFENDANT IS RESEN-TENCED AFTER VIOLATING THE PROBATIONARY PORTION OF A SPLIT SENTENCE IMPOSED FOR A CRIME OCCURRING PRIOR TO OCTOBER 1, 1989, IS THE SENTENCING COURT’S AWARD OF “CREDIT FOR ALL TIME SERVED ON THIS COUNT IN THE DEPARTMENT OF CORRECTIONS PRIOR TO RESENTENCING” SUFFICIENT TO EFFECT THE AWARD OF CREDIT FOR TIME ACTUALLY SERVED AS WELL AS UN-FORFEITED GAIN-TIME TO WHICH AN ENTITLEMENT EXISTS UNDER STATE v. GREEN, 547 So. 2d 925 (Fla.1989)?

KLEIN, STEVENSON and GROSS, JJ., concur.


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Citator

Cited By

  • Dep't of Corr. v. Mattress, 686 So. 2d 740 (Fla. 5th DCA 1997)
    …ause his entitlement to relief, if any, should be obtained through administrative channels and, if necessary, by filing a petition for writ of mandamus naming DOC as the respondent. See Adams v. Wainwright, 275 So. 2d 235 (Fla.1973); Smith v. State, 682 So. 2d 147 (Fla. 4th DCA 1996); Posey v. Kaplan, 660 So. 2d 781 (Fla. 4th DCA 1995). The reason for this is that an award of credit after sentencing is a matter for DOC rather than the trial court as a request for such credit does not affect the legality of th…
  • Bedford v. State, 775 So. 2d 402 (Fla. 4th DCA 2000)
    …the trial court summarily denied his motion, his guilty plea was now rendered involuntary. Appellant should have filed a mandamus petition to have the Department honor the amount of jail credit awarded in each of his sentences. See Smith v. State, 682 So. 2d 147, 149 (Fla. 4th DCA 1996)(“A petition for mandamus in the trial court is the appropriate remedy to permit the trial court to order the Department to implement the credit awarded to a criminal defendant pursuant to a sentencing order.”), review dismis…
  • Miller v. State, 882 So. 2d 480 (Fla. 5th DCA 2004)
    …authority to order credit for time served. Only incidentally does such an award encompass gain time, because once a court orders credit for time served, the defendant becomes entitled to an allowance of gain time by operation of law. Smith v. State, 682 So. 2d 147, 148 (Fla. 4th DCA 1996). § 944.275(3)(b). But the award of gain time is entirely a matter for the determination of the Department of Corrections. In this case, the first order failed to award Miller 960 days credit for time served, even though the…

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