PHILLIP MARSHALL, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Phillip Marshall appealed an order denying his motion for additional credit for time served after being resentenced following a successful appeal of his original life sentence conviction. The court remanded for clarification regarding whether his 1190-day credit award already included gain-time calculations, to prevent double-crediting.
The court held that Marshall may be entitled to accumulated incentive gain time upon resentencing, but remanded for clarification of whether the 1190-day credit already included gain-time to prevent double-crediting. The trial court should award credit only for jail time and day-for-day time previously served, with the Department of Corrections calculating gain-time credit.
[1] A defendant is entitled to credit for time served in the Department of Corrections, including accumulated incentive gain time, when a sentence is commuted to a term of ye…
[2] A defendant must exhaust administrative remedies with the Department of Corrections before seeking judicial review for credit for time served.
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Join FLexlaw to unlock all legal intelligence“under the applicable Department of Corrections rule, he was not eligible to receive incentive gain time during the time that he was incarcerated in the Department of Corrections on his life sentence. Fla. Admin. Code R. 33-601.101 (5)(c). However, under the rule, the Department of Corrections keeps track of such gain time so that in the event the life sentence is commuted to a term of years, the accumulated incentive gain time will be applied to the term of years.”
Establishes the rule allowing gain-time accumulation during life sentences despite ineligibility for earning it, which applies upon resentencing to a determinate sentence.
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Join FLexlaw to unlock all legal intelligenceMarshall was initially sentenced to life imprisonment but obtained a new trial on appeal. He then entered a guilty plea and was resentenced to seven a…
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[*632] COPE, J.
Phillip Marshall appeals an order denying his motion for additional credit for time served. We remand for clarification.
Defendant-appellant Marshall was initially sentenced to life imprisonment but on appeal a new trial was ordered. Marshall v. State, 731 So. 2d 165 (Fla. 3d DCA 1999). Defendant thereafter entered a guilty plea and was sentenced to seven and one-half years imprisonment. The sentencing order reflects that the defendant was to receive 1190 days of credit for time served, which appears from the sentencing order to be a combination of time served in jail and the Department of Corrections from January 20, 1997 through the resentencing date of April 24, 2000.
The defendant’s postconviction motion seeks additional credit for unforfeited gain time. He points out that under the applicable Department of Corrections rule, he was not eligible to receive incentive gain time during the time that he was incarcerated in the Department of Corrections on his life sentence. Fla. Admin. Code R. 33-601.101 (5)(c). However, under the rule, the Department of Corrections keeps track of such gain time so that in the event the life sentence is commuted to a term of years, the accumulated incentive gain time will be applied to the term of years. Id. It would thus appear in this situation that upon resentencing, the defendant would be entitled to receive from the Department of Corrections his earlier accumulated incentive gain time.
The procedure for obtaining this relief is for the defendant to apply for relief to the Department of Corrections. If the defendant is unsuccessful, he may seek judicial review after exhaustion of his administrative remedies. See Tribue v. State, 682 So. 2d 196, 197 (Fla. 3d DCA 1996).
In this case, however, we must remand for clarification. That is so because the order denying postconviction relief states that the defendant has already been awarded proper gain time. If the earlier award for 1190 days included a calculation for gain time, the defendant would not be entitled to a double credit.
Consequently, we remand for clarification, and modification of the sentencing order if necessary. The trial court should award credit only for jail time and day-for-day time previously served by the defendant in the Department of Corrections. Credit for gain time should be calculated by the Department of Corrections.
The order under review is reversed and the cause remanded for further proceedings consistent herewith.
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Lenoris Drumwright v. State, 913 So. 2d 691 (Fla. 5th DCA 2005)…PER CURIAM. AFFIRMED. See Marshall v. State, 796 So. 2d 631 (Fla. 3d DCA 2001). SHARP, W., THOMPSON and ORFINGER, JJ., concur.…
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Garrick John v. Crews, 149 So. 3d 149 (Fla. 1st DCA 2014)…991) (en banc), approved in part and quashed in part, 594 So. 2d 267 (Fla. 1992). Although the Department of Corrections keeps track of gain-time for such inmates in the event the life sentence is commuted to a terms of years, see Marshall v. State, 796 So. 2d 631, 632 (Fla. 3d DCA 2001), such an event is too speculative to give rise to a liberty interest protected by the due process clause. Osterback v. Crosby, 17 Fla. L. Weekly Fed. D517, 2004 WL 964139 (M.D.Fla. Mar. 25, 2004). AFFIRMED. ROBERTS and MA…
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Hudson v. State, 825 So. 2d 514 (Fla. 4th DCA 2002)…PER CURIAM. Affirmed. Appellant must first seek administrative relief from the Department of Corrections. See Rood v. State, 790 So. 2d 1192 (Fla. 1st DCA 2001); Marshall v. State, 796 So. 2d 631 (Fla. 3d DCA 2001). KLEIN, STEVENSON and SHAHOOD, JJ., concur.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Herskowitz v. Charney, 682 So. 2d 196 (Fla. 3d DCA 1996)
- Marshall v. State, 731 So. 2d 165 (Fla. 3d DCA 1999)