DEAN JOHNSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Defendant's sentence of 77.7 months incarceration falls within the 1994 guidelines range and thus he is not entitled to resentencing under Heggs v. State, and gain-time recalculation must be pursued through administrative remedies rather than appellate review.
A defendant is not entitled to resentencing when his incarcerative sentence falls within the permitted range under the applicable guidelines, even if the split sentence including probation exceeds the guidelines range.
[1] Only the incarcerative portion of a split sentence must fall within sentencing guidelines; the probationary portion is not subject to guidelines constraints.
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Join FLexlaw to unlock all legal intelligenceDean Johnson was sentenced to 77.7 months incarceration followed by probation. His offense was committed during the window period affected by unconsti…
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PER CURIAM.
Defendant, Dean Johnson, claims that he is entitled to be resentenced under Heggs v. State, 759 So. 2d 620 (Fla.2000). Although defendant’s offense was committed within the window period established in Trapp v. State, 760 So. 2d 924 (Fla.2000), defendant was not adversely affected by the application of the unconstitutional 1995 guidelines because his sentence of 77.7 months incarceration falls within the permitted range under the 1994 guidelines. The fact that his split sentence of incarceration followed by probation exceeds the guidelines range is irrelevant, as only the incarcerative portion of a sentence must fall within the guidelines range. See Carson v. State, 747 So. 2d 1002 (Fla. 5th DCA 1999), rev. denied, No. SC00-81, 766 So. 2d 220 (Fla. May 22, 2000).
Defendant also claims that the Department of Corrections should be required to recalculate his gain-time. However, the proper remedy to correct a miscalculation of gain-time is to file an administrative complaint with the Department and, if dissatisfied with the results, to file a petition for "writ of mandamus in the circuit court where the defendant is incarcerated to compel the Department to award the correct gain-time. See Green v. State, 698 So. 2d 575 (Fla. 5th DCA), appeal dismissed, 705 So. 2d 901 (Fla.1997). Therefore, the trial court’s order is affirmed but without prejudice to defendant seeking administrative relief regarding the calculation of gain-time.
AFFIRMED WITHOUT PREJUDICE TO SEEK ADMINISTRATIVE RELIEF. HARRIS, SAWAYA and PLEUS, JJ., concur.
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Corbblin Bush v. State, 945 So. 2d 1207 (Fla. 2006)…1998) (stating that venue lies in Leon County). And the decisions of the Fifth District Court of Appeal are mixed. See, e.g., Bush v. State, 886 So. 2d 339, 339 (Fla. 5th DCA 2004) (stating that venue lies in Leon County); but see Johnson v. State, 765 So. 2d 310, 310 (Fla. 5th DCA 2000) (stating that venue lies in the county where the prisoner is housed). . In contrast, habeas petitions are specifically addressed by statute. See § 79.09, Fla. Stat. (2005). . See, e.g., Burgess, 870 So. 2d at 219 n. 4 ("Th…
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Toomajan v. State, 785 So. 2d 1275 (Fla. 5th DCA 2001)…delines is insufficient). The fact that the trial court could have imposed a shorter term of community control is irrelevant under Heggs, because only the incareerative portion of sentences must be within the guidelines. See, e.g., Johnson v. State, 765 So. 2d 310 (Fla. 5th DCA 2000) (fact split sentence exceeds guideline range is irrelevant, because only incareerative portion of sentence must fall within guideline range). Furthermore, appellant acknowledges by his own calculations that the term of incarcera…
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Sullivan v. State, 801 So. 2d 185 (Fla. 5th DCA 2001)…Sullivan’s prison sentence. Sullivan’s prison sentence and her probationary period do not exceed the statutory maximum for her offense established in section 775.082(3)(c); Fla. Stat. (1994). Therefore, it is a legal sentence. See Johnson v. State, 765 So. 2d 310 (Fla. 5th DCA 2000) (holding that the fact that a split sentence exceeds guideline range is irrelevant, because only incareerative portion of sentence must fall within guideline range). Accordingly, we find no error in the trial court’s sentence. W…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Heggs v. State, 759 So. 2d 620 (Fla. 2000)
- Xzavier Trapp v. State, 760 So. 2d 924 (Fla. 2000)
- Green v. State, 698 So. 2d 575 (Fla. 5th DCA 1997)
- Carson v. State, 747 So. 2d 1002 (Fla. 5th DCA 1999)