DWAYNE HOPKINS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Dwayne Hopkins appealed the denial of his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, challenging the validity of his plea and sentence following a probation violation. The court affirmed the denial of his ineffective assistance claims but reversed the sentencing on the lewd and lascivious act charge because the imposed 17-year sentence exceeded the 15-year statutory maximum for that second-degree felony.
The court affirmed the denial of the ineffective assistance and involuntary plea claims because the sentencing judge had discretion to forfeit gain time credit for defendants whose offenses occurred between October 1, 1989, and December 31, 1993. However, the court reversed on the sentencing issue because the seventeen-year sentence for the lewd and lascivious act charge (a second-degree felony) exceeded the fifteen-year statutory maximum.
[1] A defendant cannot be sentenced to a term that could not have been validly imposed at the time of initial sentencing upon violation of probation.
[2] For offenses committed between October 1, 1989, and December 31, 1993, the Department of Corrections has discretion to forfeit credit for prior gain time upon revocation…
Previewing 2 of 4 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“For defendants who committed their offenses between October 1, 1989, and December 31, 1993, the Department of Corrections, like the sentencing judge, has the discretion to forfeit credit for prior gain time upon the revocation of probation pursuant to section 944.28(1), Florida Statutes (1989).”
Establishes the legal standard for gain time forfeiture in cases within the relevant time period, supporting denial of the ineffective assistance claim
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Join FLexlaw to unlock all legal intelligenceHopkins was convicted on June 14, 1990, of sexual battery by a person in familial authority and lewd and lascivious act upon a child, allegedly commit…
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PER CURIAM.
Appellant, Dwayne Hopkins, appeals the denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm in part and reverse in part.
Appellant was convicted on June 14, 1990, of one count of sexual battery by a person in a position of familial authority and one count of lewd and lascivious act upon a child. The offenses were alleged to have been committed on November 20, 1989. He was sentenced to concurrent terms of nine years’ imprisonment followed by probation. On July 21, 1995, appellant pled no contest to violation of probation. He was sentenced to concurrent terms of seventeen years’ imprisonment, with credit for time served.
On February 4,1997, appellant filed a motion for postconviction relief. Appellant argued that defense counsel rendered ineffective assistance of counsel by misadvising him that he would be given credit for all gain time awarded during his prior incarceration and would serve no more than five or six years’ imprisonment. He also argued that the alleged erroneous advice rendered his plea involuntary. Appellant did not, however, seek to withdraw the plea. Instead, it appears that the relief appellant requests is an order directing the Department of Corrections to award credit for gain time awarded during the prior incarceration.
The trial judge correctly denied relief with regard to these claims. For defendants who committed their offenses on or after October 1, 1989, the sentencing judge is permitted, but not required, to forfeit the credit for gain time otherwise available under State v. Green, 547 So. 2d 925 (Fla.1989). For defendants who committed their offenses between October 1, 1989, and December 31, 1993, the Department of Corrections, like the sentencing judge, has the discretion to forfeit credit for prior gain time upon the revocation of probation pursuant to section 944.28(1), Florida Statutes (1989). Forbes v. Singletary, 684 So. 2d 173 (Fla.1996).
Appellant correctly argues that the sentencing judge erroneously sentenced him to seventeen years’ imprisonment, upon revocation of probation, for the offense of lewd and lascivious act upon a child in violation of section 800.04, Florida Statutes. This offense is a second degree felony, and the statutory maximum sentence is imprisonment not exceeding 15 years. “Upon violate ing probation, a defendant cannot be sentenced to a term that could not have been validly imposed at the time of initial sentencing.” Gibbs v. State, 667 So. 2d 371 (Fla. 1st DCA 1995).
We reverse that portion of the order denying relief with regard to the claim that the sentence imposed for the second degree felony exceeded the maximum sentence permitted by statute and remand with directions to resentence appellant for that offense. In all other respects, the order on appeal is affirmed.
BARFIELD, C.J., and WOLF and LAWRENCE, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Lawson v. State, 751 So. 2d 623 (Fla. 4th DCA 1999)…quent to the enactment of gain time forfeiture provisions of section 944.28(1), Fla. Stat. (1993). Accordingly, at the discretion of the trial judge, Lawson’s gain time earned during his original incarceration may be forfeited. See Hopkins v. State, 711 So. 2d 603 (Fla. 1st DCA 1998). We remand for modification and resen-tencing. WARNER, C.J. and DELL, J., concur. . The holding of Grubbs is equally applicable in a community control violation hearing. See Braxton v. State, 524 So. 2d 1141 (Fla. 2d DCA 1988)…
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Miller v. State, 177 So. 3d 95 (Fla. 2d DCA 2015)…v. State, 120 So. 3d 619, 623 (Fla. 2d DCA 2013). It had no authority to impose a sentence that was not available for Miller’s offenses at the initial sentencing. See Finney v. State, 9 So. 3d 741, 744 (Fla. 2d DCA 2009); see also Hopkins v. State, 711 So. 2d 603, 604 (Fla. 1st DCA 1998) (reversing seventeen-year sentence imposed after defendant violated probation after conviction for lewd or lascivious act upon a child where the maximum allowable sentence at the time of the offense was fifteen years). Becau…
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Jones v. State, 718 So. 2d 361 (Fla. 1st DCA 1998)…PER CURIAM. Petition for Writ of Certiorari is DENIED. See Forbes v. Singletary, 684 So. 2d 173, 174-75 (Fla.1996); Hopkins v. State, 711 So. 2d 603, 604 (Fla. 1st DCA 1998). BARFIELD, C.J., and WOLF and DAVIS, JJ., concur.…
Authorities Cited
- State v. Green, 547 So. 2d 925 (Fla. 1989)
- Forbes v. Singletary, 684 So. 2d 173 (Fla. 1996)
- Gibbs v. State, 667 So. 2d 371 (Fla. 1st DCA 1995)