BENJAMIN GREEN, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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Benjamin Green petitioned for a writ of mandamus seeking credit for time served on probation and unforfeited gaintime following a probation violation sentence. The Florida Fifth District Court of Appeal denied the petition, holding that Green is not entitled to credit for probation time under Young v. State and that any calculation errors regarding gaintime must first be addressed through administrative remedies with the Department of Corrections.
Green is not entitled to credit for time served on probation because under Young v. State, a defendant who violates probation in a split sentence cannot receive such credit against a new incarceration sentence. Regarding gaintime, Green is entitled to credit for time actually served and all earned gaintime, but the Department of Corrections is responsible for proper calculation, and any error must be remedied through administrative complaint rather than mandamus.
[1] A defendant who violates the probationary portion of a split sentence is not entitled to receive credit for time served on probation against a new sentence of incarcerati…
[2] A defendant is entitled to credit for time actually served and all earned gaintime.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“a defendant who violates the probationary portion of a split sentence is not entitled to receive credit for time served on probation against a new sentence of incarceration even if the combined terms of probation and incarceration served and to be served would exceed the statutory maximum”
Establishes the controlling legal principle that probation time cannot be credited against a new sentence following probation violation
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Join FLexlaw to unlock all legal intelligenceGreen was sentenced to 17 years incarceration for violating probation and received credit for 156 days of county jail time. The sentencing order direc…
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THOMPSON, Judge.
Benjamin Green filed a motion to invoke this court’s jurisdiction to hear his petition for writ of mandamus originally filed and denied in the circuit court. Green was sentenced after violating probation and seeks credit for time he successfully served on probation and for all unforfeited gaintime. We treat this motion as a petition for writ of mandamus. See Fla. R.App. P. 9.040(c). We deny the writ.
Green was sentenced to 17 years incarceration for a violation of probation, and was given credit for 156 days county jail time. The sentence directed the Department of Corrections to apply credit for the original jail time and to “compute and apply credit for time served and unforfeited gaintime awarded during prior service.”
Green first claims that he is entitled to credit for the time he successfully served on probation. However, in Young v. State, 697 So. 2d 75 (Fla.1997), the Florida Supreme Court ruled that a defendant who violates the probationary portion of a split sentence is not entitled to receive credit for time served on probation against a new sentence of incarceration even if the combined terms of probation and incarceration served and to be served would exceed the statutory maximum. Therefore, Green is not entitled to additional credit on this ground.
Green next alleges that he is entitled to credit for all unforfeited gaintime. He is entitled to credit for the time actually served and all earned gaintime under State v. Green, 547 So. 2d 925 (Fla.1989), but any error in calculating the credit is the fault of the Department. In Forbes v. Singletary, 684 So. 2d 173 (Fla.1996), the supreme court held that an award of credit for all time previously served includes credit for unfor-feited basic and incentive gaintime under Green. Green’s sentence is clear and unambiguous, and properly awards credit. If Green has not been given the correct credit, his remedy is to file an administrative complaint with the Department. If the Department fails to correct any error, Green may then file a petition for writ of mandamus in the circuit court within the jurisdiction where he is incarcerated to compel the Department to award the proper credit under Green. See, e.g., Speed v. State, 686 So. 2d 748 (Fla. 5th DCA 1997); Smith v. State, 685 So. 2d 912 (Fla. 5th DCA 1996). Mandamus in this court is inappropriate.
We deny the petition for writ of mandamus without prejudice to allow Green to seek an administrative remedy.
GOSHORN and ANTOON, JJ., concur.
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Citator
Cited By (15 total)
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Stovall v. Sergeant William Cooper, 860 So. 2d 5 (Fla. 2d DCA 2003)…) (holding that the remedy for a defendant who was not given the proper gain time is to file a petition for a writ of mandamus in the county where he is incarcerated); Ashley v. Singletary, 706 So. 2d 1373 (Fla. 1st DCA 1998) (same); Green v. State, 698 So. 2d 575 (Fla. 5th DCA 1997) (same).…
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Williams v. The Dep't OF Corr., 734 So. 2d 1132 (Fla. 3d DCA 1999)…cause Williams is incarcerated at the Everglades Correctional Institution in Miami-Dade County, he properly filed his petition for writ of mandamus in Dade County Circuit Court and the subsequent appeal is properly before this Court. Green v. State, 698 So. 2d 575, 576 (Fla. 5th DCA), review dismissed, 705 So. 2d 901 (Fla. 1997). On remand, this cause should be transferred to the sentencing court, namely, the Palm Beach County Circuit Court. Davis, 659 So. 2d at 1127.…
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Smith v. State, 785 So. 2d 1237 (Fla. 4th DCA 2001)…necessary, by filing a petition for writ of mandamus against the Department in the circuit court where he is incarcerated. See Taylor v. State, 677 So. 2d 75 (Fla. 4th DCA 1996); Killings v. State, 567 So. 2d 60 (Fla. 4th DCA 1990); Green v. State, 698 So. 2d 575, 576 (Fla. 5th DCA 1997), cause dismissed, 705 So. 2d 901 (Fla.1997). Our affirmance is without prejudice to his doing so. DELL, STONE, and TAYLOR, JJ., concur.…
Previewing 3 of 15 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Green, 547 So. 2d 925 (Fla. 1989)
- Young v. State, 697 So. 2d 75 (Fla. 1997)
- Forbes v. Singletary, 684 So. 2d 173 (Fla. 1996)
- Cleon L. Smith v. State, 685 So. 2d 912 (Fla. 5th DCA 1996)
- Speed v. State, 686 So. 2d 748 (Fla. 5th DCA 1997)