JOSEPH B. DAWES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The trial court's order denying the motion to correct sentence is reversed because it failed to conclusively refute the defendant's claim for credit for time previously served.
[1] A trial court must conclusively refute a defendant's claim for credit for time previously served when ruling on a motion to correct sentence.
[2] A defendant is entitled to gain time granted during the service of initial concurrent sentences for crimes committed before October 1, 1989, as well as actual time served…
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Join FLexlaw to unlock all legal intelligenceThe defendant sought credit for a ten-year prison sentence completed in 1991, after his probation was revoked for earlier crimes. He alleges he did no…
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[*871] PER CURIAM.
Joseph B. Dawes seeks review of the denial of his motion to correct sentence filed pursuant to Florida Rule of Criminal Procedure 3.850. Because the trial court’s order fails to conclusively refute Dawes’ claim for credit for time previously served, we reverse.
Dawes alleges that he did not receive full credit for the ten-year prison sentence he completed in 1991, after the trial court revoked his probation for crimes committed in 1985, 1986, and 1988, and sentenced him to three concurrent twelve-year prison sentences. Because Dawes’ crimes were committed before October 1, 1989, he is entitled to gain time granted during the service of the initial concurrent sentences pursuant to section 944.275, Florida Statutes (1989), as well as actual time served. Cook v. State, 645 So. 2d 436, 438, n. 6 (Fla.1994).
Although the trial court may delegate to the Department of Corrections (DOC) the responsibility to determine the number of days to be credited, it is the court’s responsibility to decide a defendant’s entitlement to prison credit for any such unforfeited gain time. Belcher v. State, 685 So. 2d 1343 (Fla. 2d DCA 1996). If the trial court’s sentencing order allows credit for all time previously served, DOC must include credit for unforfeited gain time. Forbes v. Singletary, 684 So. 2d 173 (Fla.1996).
We reverse because the trial court did not attach portions of the record conclusively showing that Dawes is entitled to no relief. On remand, if the trial court denies the motion again, it shall attach those documents, including the judgment and sentence, that conclusively refute the claim that Dawes was not awarded credit for all time previously served in prison. If the sentencing order does not award prison credit, Dawes shall be resenteneed in a manner that effectuates the intent of the plea agreement. Dawes must seek appellate review of the trial court’s order within thirty days of its rendition.
Reversed and remanded.
SCHOONOVER, A.C.J., and BLUE and QUINCE, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Cook v. State, 645 So. 2d 436 (Fla. 1994)
- Forbes v. Singletary, 684 So. 2d 173 (Fla. 1996)
- Belcher v. State, 685 So. 2d 1343 (Fla. 2d DCA 1996)