EDDIE CUNNINGHAM, PETITIONER,
v.
STATE OF FLORIDA, ET AL., RESPONDENTS
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The Department of Corrections has the authority to impose a forfeiture penalty to effect a complete forfeiture of gain time when a defendant is resentenced to a term less than the original incarcerative term.
After revocation of probation, Cunningham was resentenced to a term shorter than his original incarcerative sentence. The Department of Corrections ad…
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In this case, we elect to treat Cunningham’s appeal from the circuit court’s denial of his mandamus proceeding to review administrative action as a petition for certiorari. See Sheley v. Florida Parole Commission, 720 So. 2d 216 (Fla.1998). The issue before us is the propriety of the Department of Correction’s election to impose a forfeiture penalty of 547 days in order to effect a complete forfeiture of gain time pursuant to section 944.28(1), Florida Statutes (1997).
After revocation of the probationary portion of a split sentence, the trial court on September 25, 1997, sentenced Cunningham to ten and one-half years incarceration. The Court provided credit of 800 days for time spent in the county jail after Cunningham’s arrest for violation of probation. It also ordered the Department to apply the original jail credit awarded and to compute and apply credit for the time previously served in prison.
The Department subsequently added 547 days as a forfeiture penalty to forfeit all gain time Cunningham had previously accumulated during the incarcerative portion of his split sentence. The original split sentence was twelve years incarceration followed by five years probation. Since the ten and one-half year sentence imposed after revocation of probation was less than the original twelve-year incarcer-ative term, DOC added the forfeiture penalty of 547 days so that all gain time could be forfeited pursuant to section 944.28(1), Florida Statutes (1997).
We have recently held that the Department has the authority to apply this forfeiture penalty in these circumstances to require a defendant to serve the portion of his original prison term which was not actually served. See Singletary v. Whittaker, 739 So. 2d 1183 (Fla. 5th DCA 1999).
Petition for Writ of Certiorari DENIED.
GOSHORN and THOMPSON, JJ„ concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Moore v. State, 755 So. 2d 806 (Fla. 3d DCA 2000)…nths. See Singletary v. Whittaker, 739 So. 2d 1183, 1184 (Fla. 5th DCA 1999) (en banc); see also Eldridge v. Moore, No. SC93567, - So. 2d -, 2000 WL 373762 (Fla. Apr.13, 2000) (expressing agreement with Singletary v. Whittaker); Cunningham v. State, 742 So. 2d 356, 357 (Fla. 5th DCA 1999). In Whittaker, the defendant had to serve 1368 days of forfeited gain time, see 739 So. 2d at 1184, while in Cunningham, the defendant had to serve 547 days of forfeited gain time, see 742 So. 2d at 357, and in Eldridge the…
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Fla. Dep't OF Corr. v. Davis, 789 So. 2d 1220 (Fla. 1st DCA 2001)…sis. Moore v. Tolbert, 763 So. 2d 1268 (Fla. 1st DCA 2000). Moreover, the department has made a preliminary showing to this court of the correctness of its contentions that Davis’s claim is procedurally barred and without merit. Cunningham v. State, 742 So. 2d 356 (Fla. 5th DCA 1999). PETITION GRANTED. ERVIN, MINER and POLSTON, JJ., concur.…
Authorities Cited
- Sheley v. Fla. Parole Comm'n, 720 So. 2d 216 (Fla. 1998)
- Singletary v. Whittaker, 739 So. 2d 1183 (Fla. 5th DCA 1999)