HARRY K. SINGLETARY, JR., SECRETARY OF FLORIDA DEPARTMENT OF CORRECTIONS, APPELLANT,
v.
DINO MARCHETTI, APPELLEE
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The Florida District Court of Appeal affirmed a trial court order that effectively mitigated a defendant's sentence by 120 days due to his unnecessary six-month detention in county jail instead of being returned to Department of Corrections custody. The court recharacterized the trial court's order styled as 'gain time' as a lawful sentence mitigation under Florida Rule of Criminal Procedure 3.800(b), finding the trial court had discretion to mitigate the sentence given the circumstances of the defendant's wrongful detention.
Although the trial court lacks direct jurisdiction to award gain time, it has broad discretion to mitigate a lawful sentence. The trial court's order, though styled as an award of gain time, should be recharacterized as a lawful sentence mitigation of 120 days under Florida Rule of Criminal Procedure 3.800(b) given the defendant's unnecessary county jail detention.
[1] A trial court's order, though styled as an award of additional prison gain-time, may be affirmed as a sentence mitigation if its practical effect is to shorten the defend…
[2] Mitigation of a lawful sentence is largely discretionary with the trial court.
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Join FLexlaw to unlock all legal intelligence“[mitigation of a lawful sentence is largely discretionary with the trial court[,]”
Establishes the trial court's broad discretion to mitigate sentences under Gaston v. State
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Join FLexlaw to unlock all legal intelligenceMarchetti was transported from DOC custody to county jail to appear at a hearing on May 14, 1996. The trial court did not order his return to DOC cust…
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SHEVIN, Judge.
We affirm the order under review as an order that, in effect, mitigates defendant’s sentence. Although the trial court styled the order as an “Order Allowing Additional Prison Gain-Time,” the court’s intention was to address defendant’s sentence, and mitigate that sentence in view of defendant’s unnecessary retention in county jail.
Defendant had been transported to county jail from the custody of the Department of Corrections [DOC], pursuant to a trial court order, to appear at a hearing on May 14,1996. Had defendant been returned timely to prison, into DOC’s custody, he could have potentially earned gain time to abbreviate his sentence. However, the court did not order defendant’s return to the DOC until November 8,1996, six months later. As a result of his stay in the county jail, the defendant was denied the opportunity to earn gain time.
Although the trial court lacks jurisdiction to award gain time credit, see State v. Green, 547 So. 2d 925 (Fla.1989), “[mitigation of a lawful sentence is largely discretionary with the trial court[,]” Gaston v. State, 613 So. 2d 496, 497 (Fla. 2d DCA), review denied, 626 So. 2d 208 (Fla.1993), and we deem defendant’s construction of the court’s order, as a sentence mitigation, to be reasonable. The court’s reasoning in Gaston, upon reviewing an order vacating an award to Gaston of 55 days gain time, is equally applicable to the facts here.
The practical effect of the [order] was not to require the Department of Corrections to award additional gain time, but rather to shorten Gaston’s overall sentence by 55 days. We note that the [subject] order was entered within sixty days of our mandate in Gaston’s plenary appeal. This fact lends weight to Gaston’s argument that the order essentially was one mitigating his sentence pursuant to Florida Rule of Criminal Procedure 3.800(b).
Gaston, 613 So. 2d at 497 (footnote omitted).
Given the circumstances in this case, defendant’s argument that the trial court’s order in response to defendant’s county jail detention intended to mitigate his sentence by 120 days is well taken. As the court modified defendant’s sentence within 60 days after receipt of mandate issued in defendant’s original appeal, and the State did not object to the court’s order reducing defendant’s sentence, we affirm the order. See Gaston; Fla.R.Crim.P. 3.800(b). Accordingly, we modify the order to reflect the trial court’s apparent intention to mitigate defendant’s sentence and treat it as such, rather than as an order directing the DOC to award additional gain time.
No motion for rehearing will be entertained, and the mandate will issue forthwith.
Affirmed as modified.
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Moore v. Pearson, 789 So. 2d 316 (Fla. 2001)…ch a sentence be treated as “surplusage” in the sentencing order, as the DOC asserts. Instead, a coterminous sentence is a sentencing decision in which a court exercises its discretion to mitigate a defendant’s sentence. Cf. Singletary v. Marchetti, 691 So. 2d 65 (Fla. 3d DCA 1997) (treating sentencing order giving credit for county jail gain time as a mitigation of sentence rather than an award of gain time); Gaston v. State, 613 So. 2d 496 (Fla. 2d DCA 1993 ) (same). Accordingly, DOC violates the separatio…
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State v. Mendiola, 919 So. 2d 471 (Fla. 3d DCA 2005)…ult of his own from 3/21/2003 until 6/23/2004; and credit for time served in DCJ from 6/23/2004 until 11/08/2004.” Certiorari granted in part. . The defendant also does not take issue with the corrected sentence. . Unlike Singletary v. Marchetti, 691 So. 2d 65 (Fla. 3d DCA 1997), this defect cannot be cured by treating the order as one "mitigat [*473] ing” the sentence because the jurisdictional time for mitigation had long since expired. See Fla. R.Crim. P. 3.800(c)(court may reduce or modify legal sente…
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Miller v. State, 882 So. 2d 480 (Fla. 5th DCA 2004)…n to effect a fair sentence by awarding credit for time served, to insure that a defendant is accorded due process where, due to circumstances beyond the defendant’s control, the right to accrue gain time has been denied. In Singletary v. Marchetti, 691 So. 2d 65 (Fla. 3d DCA 1997), the court affirmed an order allowing additional prison gain time. In that case, the defendant was transported to county jail from the Department of Corrections, pursuant to the order of the trial court and [*482] it did not order…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Green, 547 So. 2d 925 (Fla. 1989)
- Gaston v. State, 613 So. 2d 496 (Fla. 2d DCA 1993)