TONY L. GAYNOR, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Tony Gaynor appealed the denial of his Rule 3.800(a) motion to correct an allegedly illegal sentence, claiming improper gain time calculation and an erroneous prior conviction on his sentencing scoresheet. The court affirmed, holding that gain time disputes must be pursued through administrative remedies rather than Rule 3.800(a), and that factual issues regarding scoresheet accuracy cannot be resolved in such proceedings.
Rule 3.800(a) is not the proper remedy for gain time disputes; such claims must first be pursued through administrative remedies within the Department of Corrections and then by petition for writ of mandamus. Factual issues regarding scoresheet accuracy that cannot be determined from the face of the record cannot be considered in a Rule 3.800(a) proceeding.
[1] A motion to correct an illegal sentence under rule 3.800(a) is not the proper remedy for issues concerning the calculation of gain time, which must first be pursued throu…
[2] Claims regarding the improper inclusion of an offense on a sentencing guideline scoresheet, which cannot be determined from the face of the record, cannot be considered i…
Previewing 2 of 3 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“Rule 3.800(a) provides a remedy for defendants who have received an illegal sentence, or who have a miscalculation on their sentencing guideline scoresheet. In contrast, issues concerning gain time must first be pursued through administrative remedies, and then by petition for writ of mandamus in the circuit court.”
Establishes the proper scope of Rule 3.800(a) and the exclusive remedy for gain time disputes
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceGaynor was sentenced to nine years incarceration in 1993 for two strong-arm robbery convictions. He was twice placed on conditional release, but both …
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PALMER, J.
Tony Gaynor (defendant) appeals the summary denial of his rule 3.800(a) motion to correct an illegal sentence.1 Because the defendant has pursued the wrong remedy, we affirm.
Defendant first challenges the calculation of his gain time. He states that he was sentenced to nine years incarceration in 1993 for two convictions of strong-arm robbery, and further that he was twice placed on conditional release, but both terms of conditional release were revoked and he was returned to prison to complete his nine year sentence. Although his maximum release date is June 2, 2003, and his tentative release date is March 2, 2003, defendant claims that with the proper application of gain time his sentence would have already expired.
Rule 3.800(a) provides a remedy for defendants who have received an illegal sentence, or who have a miscalculation on their sentencing guideline scoresheet. In contrast, issues concerning gain time must first be pursued through administrative remedies, and then by petition for writ of mandamus in the circuit court. Accordingly, the defendant must seek relief on his gain time claim by pursuing his administrative remedies within the Department of Corrections. See Tarrand v. State, 809 So. 2d 66 (Fla. 5th DCA 2002) (holding that rule 3.800(a) is not proper remedy where defendant raises issue which should be pursued through administrative remedies); Bryant v. State, 744 So. 2d 550 (Fla. 1st DCA 1999) (affirming the denial of a rule 3.800(a) motion which raised a gain time issue without prejudice to defendant to pursue administrative remedies).
Defendant also asserts that a grand theft auto offense was improperly included on his sentencing guideline scoresheet. This factual issue cannot be determined from the face of the record, and therefore cannot be considered in a rule 3.800(a) proceeding. See Roche v. State, 681 So. 2d 1210 (Fla. 5th DCA 1996) (holding that defendant’s claim that scoresheet was not properly calculated involved issues which could not be determined from the face of the record and would require evidentiary hearing, so trial court correctly denied 3.800(a) motion). See also Williams v. State, 769 So. 2d 479 (Fla. 5th DCA 2000).
AFFIRMED.
COBB and GRIFFIN, JJ., concur. . See Fla. R.Crim. P. 3.800.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Smith v. State, 902 So. 2d 351 (Fla. 5th DCA 2005)…illegal sentence, or an incorrect calculation of a scoresheet, or a sentence that does not grant proper credit for time served prior to sentencing, it is not available to address post-sentencing jail credit or gain time issues. See Gaynor v. State, 831 So. 2d 1246 (Fla. 5th DCA 2002); Tarrand v. State, 809 So. 2d 66 (Fla. 5th DCA 2002). See also Brown v. State, 427 So. 2d 821 (Fla. 2d DCA 1983). Second, the motion filed in the trial court and the documents filed in this appeal are legally insufficient. Ther…
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Grieco v. State, 962 So. 2d 1067 (Fla. 5th DCA 2007)…he proper procedure for seeking this relief is to file a petition for writ of mandamus in the circuit court to review final action by the DOC relating to gain time claims. See Sheley v. Fla. Parole Comm’n, 720 So. 2d 216 (Fla.1998); Gaynor v. State, 831 So. 2d 1246 (Fla. 5th DCA 2002) (gain time claim cannot be raised in 3.800(a) motion). Accordingly, we dismiss the appeal. DISMISSED. PLEUS, MONACO and TORPY, JJ., concur.…
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Mikell v. State, 17 So. 3d 752 (Fla. 5th DCA 2009)…llenge the Department of Correction’s application of certain gain-time statutes to his sentence. “[T]he defendant must seek relief on his gain time claim by pursuing his administrative remedies within the Department of Corrections.” Gaynor v. State, 831 So. 2d 1246, 1247 (Fla. 5th DCA 2002) (citations omitted). ORFINGER, LAWSON and EVANDER, JJ., concur.…
Authorities Cited
- Tarrand v. State, 809 So. 2d 66 (Fla. 5th DCA 2002)
- Cioni v. State, 809 So. 2d 66 (Fla. 5th DCA 2002)
- Amadore Roche v. State, 681 So. 2d 1210 (Fla. 5th DCA 1996)
- Bryant v. State, 744 So. 2d 550 (Fla. 1st DCA 1999)
- Williams v. State, 769 So. 2d 479 (Fla. 5th DCA 2000)