BRIAN KEITH GIBBS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court affirmed the denial of a motion to correct an illegal sentence under Rule 3.800(a) for failure to award unforfeited gain time, but certified to the Florida Supreme Court the question of whether such errors are remediable under Rule 3.800(a) when the sentence does not exceed the statutory maximum.
A trial court's failure to award unforfeited gain time under State v. Green is not remediable under Florida Rule of Criminal Procedure 3.800(a) when the resulting sentence does not exceed the statutory maximum for the offense.
[1] A trial court's failure to award unforfeited gain time under State v. …
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Join FLexlaw to unlock all legal intelligenceAppellant Gibbs filed a motion to correct an illegal sentence pursuant to Rule 3.800(a), asserting that the trial court failed to award him unforfeite…
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PER CURIAM.
The appellant challenges an order of the trial court by which his motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a) was denied. Although the motion states a facially sufficient basis for his entitlement to unforfeited gain time under State v. Green, 547 So. 2d 925 (Fla.1989), the appellant has not asserted, and it does not. otherwise appear from the record before us, that his sentence exceeds the statutory maximum for his offense. See Davis v. State, 661 So. 2d 1193 (Fla.1995); King v. State, 681 So. 2d 1136 (Fla.1996). Accordingly, the appellant’s claim would appear to be no longer cognizable under rule 3.800(a). See Sullivan v. State, 674 So. 2d 214 (Fla. 4th DCA 1996); but see Ford v. State, 667 So. 2d 455 (Fla. 4th DCA 1996); Nichols v. State, 668 So. 2d 278 (Fla. 2d DCA 1996). Because of the apparent confusion over the applicability of rule 3.800(a) to such claims, we certify the following question of great public importance to the supreme court:
WHERE THE TRIAL COURT RECORD REVEALS THAT THE TRIAL COURT HAS FAILED TO AWARD CREDIT FOR UNFORFEITED GAIN TIME AS REQUIRED BY STATE V. GREEN, IS THE ERROR REMEDIABLE UNDER RULE 3.800(A) EVEN THOUGH THE DENIAL OF CREDIT HAS NOT CAUSED THE DEFENDANT TO BE SENTENCED TO A. PERIOD IN EXCESS OF THE STATUTORY MAXIMUM FOR HIS OFFENSE?
The order is affirmed and the question is certified.
MINER, ALLEN and LAWRENCE, JJ., concur.
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Betancourt v. State, 804 So. 2d 313 (Fla. 2001)…) (affirming a habitualized life sentence for a first-degree felony punishable by life); see also Patterson v. State, 693 So. 2d 74 (Fla. 1st DCA 1997) (affirming a fifty-year sentence for a first-degree felony punishable by life); Roberts v. State, 685 So. 2d 88 (Fla. 1st DCA 1996) (affirming a thirty-five year sentence for a first-degree felony punishable by life). . The Third District also remanded the case so that the life classification on the judgment for the kidnapping offense could be changed. See B…
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Betancourt v. State, 767 So. 2d 557 (Fla. 3d DCA 2000)…See Brown v. State, 24 Fla. L. Weekly D2753, D2754, - So. 2d -, 1999 WL 1112715 (Fla. 1st DCA Dec. 8, [*559] 1999); Dues v. State, 716 So. 2d 282, 283 (Fla. 1st DCA 1998); Patterson v. State, 693 So. 2d 74, 75 (Fla. 1st DCA 1997); Roberts v. State, 685 So. 2d 88, 89 (Fla. 1st DCA 1996); Knickerbocker v. State, 619 So. 2d 18, 19 (Fla. 1st DCA 1993). We have, however, been unable to find that the First District has receded from it, so we are obliged to certify direct conflict. Although the defendant has not…
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Vanderblomen v. State, 709 So. 2d 144 (Fla. 1st DCA 1998)…3.800(a) motions. While this court adopted the approach taken by the Fourth and Fifth District Courts of Appeal, see, e.g., Edwards v. State, 700 So. 2d 444 (Fla. 1st DCA 1997); Barfield v. State, 671 So. 2d 820 (Fla. 1st DCA 1996); Gibbs v. State, 685 So. 2d 88 (Fla. 1st DCA 1996), review dismissed, 692 So. 2d 185 (Fla.1997); Berry v. State, 684 So. 2d 239, 240 (Fla. 1st DCA 1996), the Second District Court of Appeal specifically held that a claim for additional presentencing jail or prison credit still co…
Authorities Cited
- Davis v. State, 661 So. 2d 1193 (Fla. 1995)
- State v. Green, 547 So. 2d 925 (Fla. 1989)
- King v. State, 681 So. 2d 1136 (Fla. 1996)
- Sullivan v. State, 674 So. 2d 214 (Fla. 4th DCA 1996)
- Ford v. State, 667 So. 2d 455 (Fla. 4th DCA 1996)
- Nichols v. State, 668 So. 2d 278 (Fla. 2d DCA 1996)