SHAWN BROWN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Shawn Brown appealed his sentence of 22 months probation with a condition to serve that time in county jail for sale of cocaine, claiming he should receive gain time credits equivalent to those given state prison inmates. The court affirmed, holding that Brown's challenges were procedurally deficient and must be pursued through proper collateral remedies.
The court affirmed Brown's sentence and rejected both forms of relief requested. Brown's challenge to the voluntariness of his plea must be pursued through a motion to withdraw the plea at the trial level or via Rule 3.850 collateral attack, not on direct appeal. Brown's request for gain time credits must be pursued through a petition for writ of mandamus or habeas corpus filed in circuit court after exhaustion of administrative remedies.
[1] A defendant seeking to withdraw a plea based on the trial court's failure to inform them about gain time eligibility must first file a motion to withdraw the plea in the…
[2] A defendant seeking to be awarded gain time earned or due on a sentence served in a local detention facility must pursue relief through a petition for writ of mandamus or…
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Join FLexlaw to unlock all legal intelligence“Appellant asserts that he is the functional equivalent of a state prison inmate and is thus entitled to be awarded the same amount of gain time that he would receive if housed in a state prison.”
Establishes Brown's primary argument regarding gain time eligibility
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceBrown entered a plea of no contest to one count of sale of cocaine and was sentenced to 22 months probation with the special condition that he serve 2…
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MICKLE, Judge.
We have for review a judgment and sentence imposed after entry of a plea of no contest to one count of sale of cocaine. For the reasons set forth below, we affirm.
Following entry of his plea, appellant was sentenced to probation for 22 months, with the special condition that he serve 22 months in the Wakulla County Jañ. The statutory provision under which appellant was apparently sentenced, section 921.188, Florida Statutes (1993), specifies conditions under which the court may place a felony offender, whose presumptive sentence is 1 year and 1 day to 22 months, in the custody of a local detention facility as a condition of probation or community control.
Appellant asserts that he is the functional equivalent of a state prison inmate and is thus entitled to be awarded the same amount of gain time that he would receive if housed in a state prison. In this appeal, he prays for either of two forms of relief. First, he requests that this court reverse and remand with directions that he be permitted to withdraw his plea. As grounds, he asserts essentially that his plea was rendered involuntary and unknowing by the fact that the trial court failed to inform him that county jail authorities would consider him ineligible for gain time. Affirmance is warranted under this theory of relief given the fact that appellant failed to move to withdraw his plea at the trial level. Relief, if any, must come via a motion to withdraw the plea filed with the trial court, or via collateral attack by way of a rule 3.850 motion. See Robinson v. State, 373 So. 2d 898 (Fla.1979); Simmons v. State, 645 So. 2d 129 (Fla. 1st DCA 1994); Heatley v. State, 636 So. 2d 153 (Fla. 1st DCA 1994); Isley v. State, 565 So. 2d 389 (Fla. 5th DCA 1990).
Alternatively, appellant requests that this court direct the jail officials to award him any and all gain time due. Appellant is not challenging his sentence as illegal or invalid, nor is he requesting credit for time previously served. Rather, he is requesting to be awarded gain time earned or due on his present sentence. Appellant’s proper avenue of relief in this regard, however, is a petition for writ of mandamus, or habeas if applicable, filed with the circuit court after the exhaustion of administrative remedies. See e.g. Bland v. State, 664 So. 2d 35 (Fla. 5th DCA 1995); Bowles v. State, 647 So. 2d 1056 (Fla. 5th DCA 1994).
AFFIRMED.
ALLEN and WEBSTER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Coburger v. State, 707 So. 2d 1201 (Fla. 3d DCA 1998)…t voluntary or intelligent, “that issue should first be presented to the trial court in accordance with the law and standards pertaining to a motion to withdraw a plea”); see also Williams v. State, 316 So. 2d 267, 273-74 (Fla.1975); Brown v. State, 695 So. 2d 736, 737 (Fla. 1st DCA 1996); [*1202] Surinach v. State, 676 So. 2d 997, 999-1000 (Fla. 3d DCA 1996).…
Authorities Cited
- Gissendanner v. State, 373 So. 2d 898 (Fla. 1979)
- Robinson v. State, 373 So. 2d 898 (Fla. 1979)
- Isley v. State, 565 So. 2d 389 (Fla. 5th DCA 1990)
- Heatley v. State, 636 So. 2d 153 (Fla. 1st DCA 1994)
- Bowles v. State, 647 So. 2d 1056 (Fla. 5th DCA 1994)
- Ned Bland v. State, 664 So. 2d 35 (Fla. 5th DCA 1995)
- Torrence Betrande Simmons v. State, 645 So. 2d 129 (Fla. 1st DCA 1994)
- Levon Tindall v. State, 645 So. 2d 129 (Fla. 4th DCA 1994)