JOHN W. BINKLEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 5th DCA | 2005-04-01
No. 5D04-231
SHARP, W. and GRIFFIN, JJ., concur.
900 So. 2d 650 Florida District Court of Appeal, Fifth District (2005) Positive Treatment
Cited by 2 cases

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Synopsis

John Binkley appealed the summary denial of his motion to clarify his sentence, contending that the trial court failed to award proper credit for time served and unforfeited gain time after his probation violation and resentencing. The Fifth District Court of Appeal reversed and remanded, finding the record unclear regarding whether Binkley was entitled to prison credit under the Tripp doctrine.


Holding

The court reversed and remanded, holding that the record was unclear as to whether Binkley was entitled to prison credit, and the trial court must either award credit by checking the appropriate box or deny credit by attaching record portions that refute Binkley's request.


Headnotes

[1] A motion filed pursuant to Rule 3.800, Florida Rules of Criminal Procedure, is the proper procedural vehicle to claim additional prison credit.

[2] When a trial court fails to check the box on a judgment and sentence form directing the Department of Corrections to calculate and apply proper credit for time served, th…

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Key Quotes

“if a trial court imposes a term of probation on one offense consecutive to a sentence of incarceration on another offense, credit for time served on the first offense must be awarded after revocation on the second offense”

Establishes the Tripp doctrine requiring credit for time served upon probation revocation

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Facts & Procedural History

Binkley pleaded no contest to burglary with assault and sexual battery, receiving 20 years plus 5 years probation. He was later arrested for violating…

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Opinion of the Court
THOMPSON, J.

THOMPSON, J.

John Binkley appeals the summary denial of his motion to clarify sentence filed pursuant to Rule 3.800, Florida Rule of Criminal Procedure. He contends that the court did not award the correct amount of credit for time served and for unforfeited gain time. We reverse and remand for reconsideration by the trial court.

Binkley entered a plea of no, contest to burglary of a dwelling with an assault or battery, Count I, and to sexual battery, Count II. He was sentenced to 20 years on the first count followed by five years of probation on the second count. Binkley was released from prison, but was subsequently arrested for violating the terms of his probation. He was resentenced to 40 years in prison on Count I, and concurrently to 14 years on Count II. ,

Binkley states that when he was resen-tenced for violating his probation, his original sentence was vacated and a new sentence was filed, but the trial court did not check the box on the form which would have given him credit for the original time served. In Tripp v. State, 622 So. 2d 941 (Fla.1993), the Florida Supreme Court held that if a trial court imposes a term of probation on one offense consecutive to a sentence of incarceration on another offense, credit for time served on the first offense must be awarded after revocation on the second offense. However, in Hodgdon v. State, 789 So. 2d 958 (Fla.2001), the court clarified that it was not its intent to provide a sentencing boon or windfall to defendants upon violations of probation. See also Moore v. State, 882 So. 2d 977 (Fla.2004).

We find the case of Scott v. State, 872 So. 2d 1011 (Fla. 5th DCA 2004) dispositive. In Scott, we held that a motion filed pursuant to Rule 3.800 is the proper vehicle to claim additional prison credit. Id. at 1012. In Scott, the defendant sought additional prison credit on a second count after a violation of probation, but the record was unclear whether he received the credit. Id. We noted that the trial court did not rule on the defendant’s specific request and did not check the box on the judgment and sentence directing the Department of Corrections (“DOC”) to calculate and apply the proper credit to the; defendant’s sentence. Id. We reversed and remanded for reconsideration, directing the trial court to make a notation stating that the defendant was entitled to prison credit, or to attach portions of the record that demonstrated that the defendant was not entitled to prison credit pursuant to Tripp. Id. at 1013.

In this case, the record is unclear as to whether Binkley is entitled to prison credit. The trial court did not check the box that provided for Binkley to receive credit for his prison time. Furthermore, there is a statement in the record by a DOC specialist stating: “No Tripp credit allowed.” However, it is not clear from the record whether Binkley exhausted all of his administrative remedies to clarify whether the DOC properly calculated his prison time.

Because the record is unclear, we reverse and remand for the trial court to reconsider the sentence. The trial court may award Binkley prison credit by checking the box directing the DOC to calculate how much prison time is appropriate for Binkley’s sentence, or deny Binkley credit by attaching portions of the record which refute Binkley’s request. Binkley can then administratively appeal the calculation if it is inaccurate.

REVERSED and REMANDED.

SHARP, W. and GRIFFIN, JJ., concur.


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Citator

Cited By

  • Hardenbrook v. State, 953 So. 2d 717 (Fla. 1st DCA 2007)
    …rved in the Department of Corrections is left to the Department to compute.”). If the Department of Corrections fails to give the full credit ordered by the trial court, the prisoner must first seek relief from the Department.2 See Binkley v. State, 900 So. 2d 650, 651 (Fla. 5th DCA 2005) (“The trial court may award [the defendant] prison credit by checking the box directing the DOC to calculate how much prison time is appropriate for [his] sentence.... [The defendant] can then administratively appeal the cal…

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