JOHN FULLWOOD, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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John Fullwood appealed the denial of motions for clarification and correction of his sentence. The Florida District Court of Appeal affirmed the denial of the clarification motion but reversed the denial of the correction motion, finding the trial court had imposed a sentence exceeding the statutory maximum for the crimes committed in 1993.
The court affirmed that the trial court properly did not address gain time, as that authority resides exclusively with the Department of Corrections under chapter 944, Florida Statutes. However, the court reversed and remanded for resentencing, holding that a nineteen-year sentence exceeded the statutory maximum applicable to crimes committed in 1993, prior to 1994 when such guideline sentences became permissible.
[1] A trial court cannot grant or bar gain time awards, as the authority to regulate gain time resides exclusively within the Department of Corrections.
[2] A person convicted of sexual battery is not eligible for basic gain time.
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Join FLexlaw to unlock all legal intelligence“The authority to regulate gain time resides exclusively within the Department of Corrections pursuant to chapter 944, Florida Statutes”
Establishes that trial courts cannot determine gain time eligibility; this authority belongs solely to the Department of Corrections
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Join FLexlaw to unlock all legal intelligenceFullwood was sentenced to nineteen years pursuant to a 1991 sentencing guidelines scoresheet on case number 93-11997. He committed the offenses in 199…
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PER CURIAM.
The defendant, John Fullwood appeals the denial of a motion for clarification of sentence and the denial of a motion to correct sentence. We affirm the denial of the motion to clarify sentence and reverse the denial of the motion to correct sentence and remand for resentencing.
In the motion to clarify sentence, defendant alleges that the trial court erred because the trial court miscalculated the length of defendant’s sentence based on the assumption that defendant would receive gain time toward his release. This argument is without merit.
“The authority to regulate gain time resides exclusively within the Department of Corrections pursuant to chapter 944, Florida Statutes”. Moore v. Pearson, 789 So. 2d 316, 319 (Fla.2001). When a sentencing court attempts to either bar or grant gain time awards, those portions of the sentencing order have been struck as surplusage. Id. The Department of Corrections correctly found that Defendant is not entitled to gain time pursuant to section 794.011(7), Florida Statutes (1993), which provides that a person convicted of sexual battery is not eligible for basic gain time.
Defendant is however entitled to relief on his claim that the trial court erred in denying the motion to correct sentence. Defendant alleges that the trial court’s sentence of nineteen years, on case number 93-11997, was improper as it exceeded the statutory maximum. We agree.
The trial court sentenced Defendant pursuant to a 1991 sentencing guidelines scoresheet to nineteen years, which fell within the recommended sentence of seventeen to twenty-two years. However, Defendant committed these offenses in 1993 and prior to 1994, a court could not impose a guidelines sentence beyond the statutory limits. See Mays v. State, 717 So. 2d 515, 516 (Fla.1998); Allen v. State, 702 So. 2d 301 (Fla. 1st DCA 1997); see also § 921.001(5) Fla. Stat. (1991).
Accordingly, as concerns the sentencing issue, we reverse and remand with instructions to the trial court to resentence defendant to the statutory maximum for a second degree felony-fifteen years, with credit for all time served. Defendant need not be present for resentencing. Affirmed in part, reversed and remanded in part.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Mays v. State, 717 So. 2d 515 (Fla. 1998)
- Moore v. Pearson, 789 So. 2d 316 (Fla. 2001)
- Dep't OF Health v. Joseph Ovadia, M.D., 702 So. 2d 301 (Fla. 1st DCA 1997)
- Allen v. State, 702 So. 2d 301 (Fla. 1st DCA 1997)