DINO LEWIS, PETITIONER,
v.
CROSBY, JR., SECRETARY, DEPARTMENT OF CORRECTIONS, RESPONDENT
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Dino Lewis petitioned for a writ of certiorari to review a circuit court's denial of his mandamus petition seeking recalculation of his release date. The court granted the petition, holding that the Department of Corrections improperly tolled time served on firearm possession sentences while Lewis completed concurrent armed robbery sentences arising from the same criminal episode.
The court held that the Department of Corrections must recalculate Lewis's release date without adding the 344 tolled days. Under Bolden v. Florida Department of Corrections, time served on one sentence cannot be tolled while an inmate completes a related sentence arising from the same criminal episode. Because Lewis's two robbery convictions involved separate criminal episodes (each robbery was a distinct event, even though each involved firearm possession), the firearm possession time could not be tolled for each respective robbery, and the tolled time must be removed from the recalculated release date.
[1] A court may recall a mandate previously issued if it was sent down by inadvertence.
[2] When calculating a new release date following revocation of conditional release supervision, the Department of Corrections cannot consider as tolled time served following…
Previewing 2 of 4 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“In calculating Lewis's new release date, the Department added the 344 days which had been tolled. Lewis's release date should be recalculated without the addition of the 344 days.”
Establishes the core holding that the Department must remove the 344 tolled days from the recalculated release date.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceLewis was convicted in two separate cases of armed robbery with a firearm and possession of a firearm by a convicted felon—one for robbing a Subway St…
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PER CURIAM.
Respondent’s motion to recall mandate and for clarification is granted.1 We withdraw the original opinion and substitute the following opinion for our previous decision.
By petition for writ of certiorari, Dino Lewis seeks review of an order of the circuit court which denied his petition for writ of mandamus which sought recalculation of his release date. Because Lewis is entitled to relief pursuant to Bolden v. Florida Dept. of Corrections, 865 So. 2d 1 (Fla. 1st DCA 2003), rev. granted, Crosby v. Bolden, 848 So. 2d 1153 (Fla.2003), rev. dismissed, 867 So. 2d 373 (Fla.2004), we grant the petition.
In circuit court case number 95-31807, Lewis was convicted of armed robbery with a firearm and possession of a firearm by a convicted felon for robbing a Subway Store on April 17, 1995. In circuit court case number 95-31817, Lewis was convicted of armed robbery with a firearm and possession of a firearm by a convicted felon for robbing a Pizza Hut on April 8, 1995. On all four counts, Lewis was sentenced as an habitual offender and received seven-year sentences, less credit for time served prior to sentencing, all counts running concurrent to any active sentence. The circuit court imposed three-year minimum mandatory terms on the two armed robbery counts.
Lewis was eligible to receive incentive gain time while serving the firearm sentences, but not while serving the three-year mínimums for the armed robbery counts. As a result, the release dates for the firearm counts were earlier than the release dates for the armed robbery counts. The Department of Corrections tolled the time for conditional release supervision to begin on the firearm counts for 344 days while Lewis completed the incarcerative periods for the armed robbery sentences.
Lewis was released to conditional release supervision, but was later revoked. In calculating Lewis’s new release date, the Department added the 344 days which had been tolled. Lewis’s release date should be recalculated without the addition of the 344 days. In Bolden, this court held that in calculating a new release date following revocation of conditional release supervision, the Department could not consider as tolled the time served following expiration of the incarcerative portion of one sentence while the inmate awaited expiration of the incarcerative portion of a related sentence which arose from the same criminal episode. Here, petitioner received sentences that were imposed for offenses committed during both the same and different criminal episodes. During each robbery, petitioner, a convicted felon, possessed a firearm, but each robbery was committed during a separate criminal episode. Thus, as to the Pizza Hut robbery, the prison time on the firearm possession sentence could not be tolled while the Pizza Hut robbery sentence was completed. Likewise; as to the Subway robbery, the prison time on the firearm possession sentence could not be tolled while the Subway robbery sentence was completed. As between the sentences imposed in the two separate cases, our decision in Bolden affords petitioner no relief because the sentences were imposed for two unrelated robberies. See Bostic v. Crosby, 858 So. 2d 347 (Fla. 1st DCA 2003); Crosby v. McNeal, 865 So. 2d 617 (Fla. 5th DCA 2004).
PETITION GRANTED.
ERVIN, PADOVANO and POLSTON, JJ., concur. . See Thompson v. Singletary, 659 So. 2d 435, 437 (Fla. 4th DCA 1995)(citing Washington v. State, 92 Fla. 740, 110 So. 259, 260-61 (1926))(holding that the prevailing rule is that an appellate court's jurisdiction ends with the term the judgment was rendered and mandate issued except as to the power to make correction of clerical errors or inadvertences or to recall a mandate sent down by inadvertence, or to vacate a judgment void on its face).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Abe Washington v. State, 92 Fla. 740 (Fla. 1926)
- Thompson v. Singletary, 659 So. 2d 435 (Fla. 4th DCA 1995)
- Bolden v. Fla. Dep't OF Corr., 865 So. 2d 1 (Fla. 1st DCA 2002)
- Crosby v. McNEAL, 865 So. 2d 617 (Fla. 5th DCA 2004)
- James v. Crosby, Jr., 867 So. 2d 373 (Fla. 2004)
- Coldiron v. State of Fla. & Sergeant Kent, 858 So. 2d 347 (Fla. 1st DCA 2003)
- Bostic v. Crosby, 858 So. 2d 347 (Fla. 1st DCA 2003)