MARVIN DAVIS, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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Marvin Davis, an incarcerated pro se petitioner, sought a writ of habeas corpus claiming he was entitled to immediate release because the Department of Corrections incorrectly calculated his release date. The Florida Fifth District Court of Appeal denied the petition, holding that Davis's 15-year sentence could lawfully extend beyond 2006 because time spent on control release and conditional release need not be credited against the sentence, and gain time can be forfeited upon revocation of release.
Davis is not entitled to immediate release because time spent on control release and conditional release need not be credited against the sentence upon return to prison, and gain time earned prior to release can be forfeited. Therefore, a 15-year sentence imposed in 1991 could lawfully extend beyond 2006, and Davis's tentative release date of November 9, 2009 is not clearly erroneous.
[1] A prisoner is not entitled to credit towards a sentence for time spent on control release or conditional release when returned to prison.
[2] Department of Corrections is permitted to forfeit gain time earned prior to being placed on control release or conditional release.
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Join FLexlaw to unlock all legal intelligence“Upon return to prison, DOC is allowed to forfeit gain time that was earned prior to being placed on control release or conditional release.”
Establishes the legal authority for DOC to forfeit gain time upon revocation of release status
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Join FLexlaw to unlock all legal intelligenceDavis was sentenced to 15 years imprisonment in May 1991 with 146 days jail credit. He was placed on control release in 1994 and conditional release i…
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PER CURIAM.
Petitioner, a prisoner appearing pro se, seeks a writ of habeas corpus, claiming he is entitled to immediate release because a prison sentencing specialist has incorrectly determined his tentative release date.
Petitioner claims that he was sentenced to 15 years incarceration in May 1991, with jail credit of 146 days. Petitioner therefore claims that the sentence should have fully expired in the year of 2006.
However, Petitioner’s sentence has been extended to the year 2009 by DOC and the Florida Parole Commission, which Petitioner contends is an alteration of a judicially-imposed sentence without legal authority. Petitioner admits that he was placed on control release in 1994 and conditional release in 2004, and both his control release and conditional release were revoked, in 1998 and 2005, respectively. Upon return to prison, DOC is allowed to forfeit gain time that was earned prior to being placed on control release or conditional release. See §§ 947.141(6), 948.06(7), Fla. Stat. (2006); see also Frederick v. McDonough, 931 So. 2d 1005 (Fla. 3d DCA 2006).
Moreover, the time that Petitioner spent on control release and conditional release does not have to be credited against the sentence when petitioner is returned to prison. See Rivera v. Singletary, 707 So. 2d 326 (Fla.1998) (parole commission has broad authority to grant or deny releasee credit for time spent on conditional release); Gay v. Singletary, 700 So. 2d 1220 (Fla.1997) (releasee not entitled to credit towards sentence for time spent under control release supervision).
Therefore, a 15-year sentence that was imposed in 1991 could well exceed the year 2006, as petitioner was not in prison for that entire 15-year period.
The tentative release date for Petitioner is November 9, 2009, as evidenced by the sentencing specialist’s report attached to the petition, so Petitioner has not shown a clear entitlement to immediate release. As he has not shown a clear entitlement to immediate release, Petitioner should pursue his administrative remedies before seeking relief in the courts. See Fisher v. Moore, 789 So. 2d 431 (Fla. 4th DCA 2001) (no error in dismissing habeas petition which claimed that DOC and Parole Commission improperly structured consecutive sentences, where defendant had failed to exhaust administrative remedies); Reed v. Moore, 768 So. 2d 479 (Fla. 2d DCA 2000) (petition for writ of mandamus or habeas corpus regarding eligibility for gain time was properly denied where available administrative remedies had not been exhausted).
PETITION DENIED.
GRIFFIN, PALMER and TORPY, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Priester v. State, 955 So. 2d 644 (Fla. 4th DCA 2007)…edies with the Department of Corrections. If the department fails to implement the earlier orders clarifying and amending his sentences, he may then seek mandamus relief against the Department of Corrections in the circuit court. See Davis v. State, 943 So. 2d 975 (Fla. 5th DCA 2006); Smith v. State, 785 So. 2d 1237 (Fla. 4th DCA 2001). STONE, FARMER and KLEIN, JJ., concur.…
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Faxas v. State, 975 So. 2d 1269 (Fla. 4th DCA 2008)…motion for credit without prejudice to ap [*1270] pellant to first exhaust his administrative remedies with DOC, and then file for mandamus in the trial court if necessary); King v. State, 665 So. 2d 377 (Fla. 4th DCA 1996). See also Davis v. State, 943 So. 2d 975 (Fla. 5th DCA 2006). FARMER, KLEIN and MAY, JJ., concur.…
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Brady Johnson v. State, 35 So. 3d 970 (Fla. 5th DCA 2010)…ted). The court prohibited the serving of a greater sentence than originally imposed. As the trial court correctly pointed out, Johnson did not show that he exhausted his administrative remedies through the Department of Corrections, Davis v. State, 943 So. 2d 975 (Fla. 5th DCA 2006), or that the recalculation of his release date following revocation of his conditional release resulted in an incarceration exceeding that imposed by the sentencing judge. AFFIRMED without prejudice. GRIFFIN and ORFINGER, JJ.…
Authorities Cited
- Elmo H. GAY v. Singletary, 700 So. 2d 1220 (Fla. 1997)
- Abel Rivera v. Singletary, 707 So. 2d 326 (Fla. 1998)
- Frederick v. McDONOUGH, 931 So. 2d 1005 (Fla. 3d DCA 2006)
- Fisher v. Moore, 789 So. 2d 431 (Fla. 4th DCA 2001)
- Pacheco v. State, 768 So. 2d 479 (Fla. 2d DCA 2000)
- Reed v. Moore, 768 So. 2d 479 (Fla. 2d DCA 2000)