RICHARD ALFRED WASHINGTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 1st DCA | 2016-09-08
No. 1D15-0915
WOLF, LEWIS, and OSTERHAUS, JJ., concur.
199 So. 3d 1110 Florida District Court of Appeal, First District (2016) Positive Treatment
Cited by 19 cases

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Holding

The court held that false imprisonment and felony battery do not qualify for Prison Releasee Reoffender sentencing, and rescission of previously awarded jail credit is an illegal sentence enhancement.


Headnotes

[1] False imprisonment and felony battery are not enumerated offenses under the Prison Releasee Reoffender statute and therefore do not qualify for PRR sentencing.

[2] A trial court may not rescind jail credit that was previously awarded, even if the initial award was improper, as such action constitutes an increased penalty and violate…

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Facts & Procedural History

Appellant was convicted of false imprisonment, felony battery, and aggravated assault and sentenced as a Prison Releasee Reoffender (PRR). The trial c…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Appellant, Richard Alfred Washington, challenges his convictions, and sentences for false imprisonment, felony battery, and aggravated assault. We affirm the convictions without further discussion, but reverse and remand the- sentences for the reasons that follow.

At the sentencing hearing, the trial court adjudicated Appellant guilty of false imprisonment (Count 1), felony battery (Count 2), and aggravated assault (Count 3) and sentenced him on each count as a prison releasee reoffender (“PRR”) to a minimum mandatory term of five years of imprisonment, to run consecutively, with 861 days of credit for time served. Subsequently, the trial court sua sponte recalled the ease and rescinded the previously awarded jail credit on Counts 2 and 3, explaining it had erroneously believed the law required it to award jail credit as to each count. The trial court then entered a judgment and sentence reflecting that Appellant was sentenced on each count as a PRR to a minimum mandatory term of five years of imprisonment, to run consecutively, with 861 days of jail credit on Count 1 only. While this appeal was pending, Appellant filed a motion to correct sentencing error'pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), unsuccessfully challenging his PRR designation on Counts 1 and 2 and the rescission of jail credit on Counts 2 and 3.

The legality of a sentence presents a question of law and is reviewed de novo. Clowers v. State, 31 So.3d 962, 966 (Fla. 1st DCA 2010). As Appellant contends, false imprisonment and felony battery do not qualify for PRR sentencing *1112given that they are not enumerated offenses under section 775.082(9)(a), Florida Statutes. See § 775,.082(9)(a)l., Fla. Stat. (2012) (defining a PRR as a defendant who commits or attempts to commit one of the enumerated offenses — which do not include false imprisonment or felony battery — within three years of being released from prison); Lamb v. State, 32 So.3d 117, 119 (Fla. 2d DCA 2009) (concluding that false imprisonment does not qualify for PRR sentencing because it is not a listed offense under the PRR statute and its elements do not necessarily involve the use or threat of physical force or violence); Johns v. State, 971 So.2d 271, 272 (Fla. 1st DCA 2008) (concluding that a PRR designation is improper for a felony battery conviction under section 784.03(2), Florida Statutes, because that statute merely reclassifies simple battery as a felony battery based on a prior battery conviction); see also Sheffield v. State, 177 So.3d 699, 700 (Fla. 1st DCA 2015) (concluding that the appellant’s PRR sentence for possession of cocaine was illegal because that offense is not an enumerated offense under the PRR statute and does not involve the use or threat of physical force).

Moreover, “[t]his court views the rescission of previously awarded jail credit as an increased penalty and a violation of the defendant’s rights under the Fifth Amendment of the United States Constitution.” Session v. State, 37 So.3d 873, 873 (Fla. 1st DCA 2010). Thus, we prohibit the rescission of jail credit, even when it was awarded in error. Davis v. State, 63 So.3d 847, 847 (Fla. 1st DCA 2011); see also Harris v. State, 74 So.3d 1099 (Fla. 1st DCA 2011) (reversing and remanding for the reinstatement of jail credit that was improperly rescinded); Palmer v. State, 22 So.3d 795, 797 (Fla. 1st DCA 2009) (“Jail credit cannot be rescinded after it has been awarded, even if the award was made in error.”); Stang v. State, 24 So.3d 566, 570 (Fla. 2d DCA 2009) (“[A] trial court may not rescind jail credit that was previously awarded, even if the initial award was improper, because such an action violates double jeopardy.”); Wheeler v. State, 880 So.2d 1260, 1261 (Fla. 1st DCA 2004) (explaining that “[a] trial court may not sua sponte rescind jail credit previously awarded at any time even if the initial award was improper” because the rescission of previously awarded jail credit is an illegal sentence enhancement that violates the prohibition against double jeopardy). But see Gallinat v. State, 941 So.2d 1237, 1239 (Pla. 5th DCA 2006) (recognizing “precedent from both the First and Second Districts holding that a trial court can never correct an erroneous award of too much jail credit on the theory that this increases the sentence in violation of the prohibition against double jeopardy,” but rejecting that position because “[i]n our view, [ ] correcting an erroneous jail credit calculation in no way increases the sentence imposed. With a few exceptions, ... the question is simply a factual one of how much of the imposed sentence a defendant has already served”).

Therefore, as the State properly concedes, the trial court erred by sentencing Appellant as a PRR on Counts 1 and 2 because false imprisonment and felony battery do not qualify for PRR sentencing. Additionally, the trial court erred.by rescinding the previously awarded 86Í days of jail credit on Counts 2 and 3. Accordingly, we affirm Appellant’s convictions, but reverse his sentences and remand for re-sentencing consistent with this opinion.

AFFIRMED in part, REVERSED in part, and REMANDED.

WOLF, LEWIS, and OSTERHAUS, JJ., concur.


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Citator

Cited By (11 total)

  • Johnson v. State, 260 So. 3d 502 (Fla. 1st DCA 2018)
    …ison sanction could present a danger to the public, the court may sentence the offender to a state correctional facility pursuant to this section. The legality of a sentence presents a question of law reviewable de novo. Washington v. State, 199 So. 3d 1110, 1111 (Fla. 1st DCA 2016). Appellant argues on appeal that the trial court erred in denying his rule 3.800(b)(2) motion because the court’s finding that he posed a danger to the public if not incarcerated was not supported by the record.2 A…
  • Barbesco v. State, 264 So. 3d 338 (Fla. 1st DCA 2019)
    …00, but not case 2010-CF-109. Appellant’s claim has merit as to the 414 days of credit he now seeks. It is well established that a court may not rescind jail credit, even if it has been awarded in error. See generally Washington v. State, 199 So. 3d 1110, 1112 (Fla. 1st DCA 2016); Session v. State, 37 So. 3d 873, 873 (Fla. 1st DCA 2010) (“[T]he rescission of previously awarded jail credit as an increased penalty and a violation of the defendant’s [double jeopardy] rights under the Fifth Amendmen…
    1 / 2
  • Spear v. State, 294 So. 3d 995 (Fla. 5th DCA 2022)
    …fore, we next consider whether we erred in our legal analysis in Gallinat or there 8 The First District Court of Appeal has subsequently maintained this position. See Cummings v. State, 279 So. 3d 818, 820 (Fla. 1st DCA 2019); Washington v. State, 199 So. 3d 1110, 1112 (Fla. 1st DCA 2016). 9 See King v. State, 913 So. 2d 758, 760 (Fla. 2d DCA 2005); Lebron v. State, 870 So. 2d 165, 165 (Fla. 2d DCA 2004); Platt v. State, 827 So. 2d 1064, 1064 (Fla. 2d DCA 2002); Keene v. State, 826 So. 2d 327, 327 (Fla. 2d…
    1 / 2

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