WALTER CUNNINGHAM, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Walter Cunningham appeals the denial of a motion to reinstate jail credit that was originally awarded at sentencing but later revoked by the trial court through a letter to the Department of Corrections. The court affirms that the trial court lacked jurisdiction to modify the sentence after the fact and that the judge's letter was a nullity, directing Cunningham to pursue a writ of mandamus against DOC for enforcing the original sentencing order.
The trial court lacked jurisdiction to sua sponte reduce the jail credit more than two months after sentencing. The judge's letter to DOC was a nullity with no legal effect on the sentence because it contradicted the oral and written sentencing order and was issued without notice or opportunity to be heard. If DOC refuses to give effect to the original sentencing order, Cunningham's remedy is to file a petition for writ of mandamus in the Second Judicial Circuit in Leon County.
[1] A trial court lacks jurisdiction to modify a sentence more than two months after it has been imposed.
[2] A letter from a judge to the Department of Corrections regarding jail credit, sent after the sentencing period has expired and without notice to the defendant, is a legal…
Previewing 2 of 5 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“Although the state takes a contrary position on appeal, the transcript reflects that the prosecutor agreed to have the credit granted on each count at sentencing.”
Establishes that the original sentencing order awarding credit on both counts was made with the prosecution's agreement and is documented in the record.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceCunningham was sentenced on April 1, 2004, to five years for grand theft and four consecutive years for burglary. At the prosecutor's request, the tri…
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PER CURIAM.
Walter Cunningham appeals the denial of a rule 3.800(a) motion in which he sought the reinstatement of jail credit originally awarded at sentencing. This was his second rule 3.800(a) motion seeking this credit. The first motion was denied, and on appeal, this court affirmed without prejudice for appellant to exhaust his administrative remedies with the Department of Corrections (DOC) and then petition the circuit court for a writ of mandamus. Cunningham v. State, 932 So. 2d 1202 (Fla. 4th DCA 2006). We again affirm because the trial court did not enter an order changing the original sentence.
On April 1, 2004, Cunningham was sentenced to five years in prison for grand theft and to a consecutive term of four years in prison for burglary of a structure. The transcript reflects that, at the prosecutor’s request, the trial court awarded appellant 261 days credit for time served on each count, and the written sentence is consistent with the oral pronouncement.
After he began serving his prison sentence, DOC contacted the trial court and asked for clarification regarding the credit for tíme served. In response, the predecessor judge wrote a short letter stating that the sentences were consecutive and Cunningham was entitled to have the 261 days credit deducted from his total sentence only once. The letter was written more than two months after the sentence was imposed.
Cunningham has since filed two motions to correct an illegal sentence arguing that the trial court no longer had jurisdiction to change his sentence and that the revocation of this jail credit constitutes a double jeopardy violation. See Wheeler v. State, 880 So. 2d 1260 (Fla. 1st DCA 2004). He acknowledges that if the judge did not originally give him credit for time served on both counts, he would have no grounds to argue that he was entitled to this credit based on Hodgdon v. State, 789 So. 2d 958 (Fla.2001). But, even if the original award was improper, the judge could no longer change the amount of credit. Wheeler, supra at 1261. In response to this court’s previous opinion, Cunningham argued that pursuing administrative remedies with DOC is not a realistic option because DOC is following the trial court’s letter which instructed DOC to take away this credit.
Although the state takes a contrary position on appeal, the transcript reflects that the prosecutor agreed to have the credit granted on each count at sentencing.
We agree with appellant that the trial court had no jurisdiction to sua sponte reduce the amount of jail credit more than two months after sentencing. However, no new order was entered in this case. The judge’s letter to DOC was a nullity and it had no legal affect on appellant’s sentence. The letter was contrary to the oral and the written sentence, and appellant was not given notice or an opportunity to be heard. DOC cannot treat the letter as a modification of appellant’s sentence. If DOC refuses to give effect to the original sentencing order, then appellant can file a petition for writ of mandamus in the Second Judicial Circuit in Leon County. Bush v. State, 945 So. 2d 1207 (Fla.2006); Pugh v. State, 954 So. 2d 1254 (Fla. 4th DCA 2007); Ruiz v. Crosby, 888 So. 2d 154 (Fla. 5th DCA 2004); see also Rood v. State, 790 So. 2d 1192 (Fla. 1st DCA 2001) (recognizing that DOC does not have authority to reject credit specifically ordered by the trial court as part of the sentence).
Affirmed as Modified.
SHAHOOD, C.J., HAZOURI and MAY, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Mehl v. State, 16 So. 3d 1060 (Fla. 4th DCA 2009)…is motion to conform the written sentence to the oral pronouncement because the trial court’s original sentence was not “illegal” and therefore could not be corrected to his detriment. In support of this argument, Mehl relies on Cunningham v. State, 968 So. 2d 119 (Fla. 4th DCA 2007). In Cunningham, the defendant was sentenced to nine years in prison following a conviction for grand theft and to a consecutive term of four years for burglary. The court awarded him 261 days credit for time served on each count.…
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Phillips v. State, 998 So. 2d 675 (Fla. 4th DCA 2009)…order awarding him this credit, Phillips must first exhaust his administrative remedies and then file a petition for writ of mandamus in the Second Judicial Circuit in Leon County. See Bush v. State, 945 So. 2d 1207 (Fla.2006); Cunningham v. State, 968 So. 2d 119 (Fla. 4th DCA 2007); Pugh v. State, 954 So. 2d 1254 (Fla. 4th DCA 2007). FARMER, KLEIN and GROSS, JJ., concur.…
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Elbert v. State, 27 So. 3d 188 (Fla. 2d DCA 2010)…v. State, 988 So. 2d 70, 72-73 (Fla. 2d DCA 2008) (discussing the State’s authority to file a motion to modify sentence under Florida Rule of Criminal Procedure 3.800). The trial court lacked jurisdiction to enter the order. See Cunningham v. State, 968 So. 2d 119, 121 (Fla. 4th DCA 2007) (“[T]he trial court had no jurisdiction to sua sponte reduce the amount of jail credit more than two months after sentencing.”). [*190] The trial court violated Elbert’s double jeopardy rights when it entered its order to al…
Authorities Cited
- Corbblin Bush v. State, 945 So. 2d 1207 (Fla. 2006)
- Hodgdon v. State, 789 So. 2d 958 (Fla. 2001)
- Wheeler v. State, 880 So. 2d 1260 (Fla. 1st DCA 2004)
- Rood v. State, 790 So. 2d 1192 (Fla. 1st DCA 2001)
- Cunningham v. State, 932 So. 2d 1202 (Fla. 4th DCA 2006)
- Dieudonne v. State, 954 So. 2d 1254 (Fla. 4th DCA 2007)
- Pugh v. State, 954 So. 2d 1254 (Fla. 4th DCA 2007)
- Ruiz v. Crosby, 888 So. 2d 154 (Fla. 5th DCA 2004)