DANNEY F. MACKEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court upheld the denial of a habeas corpus petition where the defendant claimed he had completed his jail sentence and should have been released with credit for gain time earned. The court found that the trial judge had properly calculated the sentence to account for gain time provisions under Florida law, and the defendant was not entitled to immediate release.
The trial court properly sentenced the defendant and did not err in denying the habeas corpus petition. The court's two sentencing orders, when construed together as part of the same proceedings, demonstrate that the judge considered and accounted for gain time provisions and exercised sound judicial discretion in determining the appropriate jail term.
[1] A court may construe multiple orders from the same judge on the same date in pari materia to determine the intent of the sentencing.
[2] A trial court has discretion in determining the length of jail time to be served as part of a sentence, even when gain time provisions are applicable.
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Join FLexlaw to unlock all legal intelligence“It was obviously in the sound judicial discretion whether the jail time would be six months or seven months or any month up to the twelve months.”
Establishes that the trial judge had discretion in setting the length of jail time within the overall sentence imposed.
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Join FLexlaw to unlock all legal intelligenceDanney Mackey pled guilty to attempted uttering of a forgery with adjudication of guilt withheld on June 4, 1973. He was sentenced on August 9, 1973, …
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JOHNSON, Acting Chief Judge.
This is an appeal from an order denying a petition for writ of habeas corpus.
The petition for writ of habeas corpus was based, inter alia, on the contention that since the defendant-petitioner had been sentenced to serve six mo.nths in County Jail plus 2 years probation, said sentence to begin June 26, 1973, and that he had served the jail sentence at the time of filing the petition for habeas corpus if he had been given credit for his “gain time earned”, pursuant to F.S. § 951.21(1).
In this case to start with, the defendant had pled guilty to the crime of attempted uttering of a forgery, and adjudication of guilt was withheld and petitioner-defendant was sentenced to 2 years probation, on June 4, 1973.
The record on appeal on page 7 thereof, shows “Judgment and Sentence” in which it appears that the defendant entered a plea of guilty and was sentenced to 1 year, in county jail, “To serve six (6) months, then 2 years probation”. On the same date, to wit: August 9, 1973, the same trial court signed a printed form of the “Judgment, Sentence and Order Placing Defendant on Probation During Portion of Sentence” (the same does not show filing date until August 13, 1973, shown page 11 of record on appeal) in which is repeated the sentence to Duval County Jail for one year, with provision that after serving six months of said term, “without deducting therefrom any allowance for gain time”, the defendant would “be placed on probation for a period of -under the supervision . . . While the record shows the printed form of “Judgment and Sentence” which does contain the provision of probation for 2 years, the other order which appears to be a repetition to some extent, contains the provision that the six months jail time shall be “without deducting” the gain time, but the blank space for the duration of probation is left blank.
Therefore, we must construe the two orders by the same judge and dated the same date, in pari materia or as part of the same proceedings. This shows that the trial court did not overlook the provisions of § 951.21(1), F.S. but did in fact, take the same into consideration. It was obviously in the sound judicial discretion whether the jail time would be six months or seven months or any month up to the twelve months. Had the same jail time been for the full twelve months, and if the defendant had otherwise qualified for the gain time, then it would have been error. But in this case, the trial court allowed enough time for jail to still allow for “gain time” without violating the statute or overriding the total sentence of one year.
Affirmed.
BOYER, J., and STEWART, LEON F., Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Wright v. State, 342 So. 2d 565 (Fla. 1st DCA 1977)…or gain time or good time provided there is sufficient time left in the sentence after the period of imprisonment to allow for the maximum gain time and good time that the defendant could acquire during the term of imprisonment. See Mackey v. State, 310 So. 2d 312 (Fla. 1 DCA 1975). Here there is insufficient time left on appellant’s sentence after the period of imprisonment to allow for the maximum gain time he could acquire under § 944.27, Fla.Stat.1975, and the maximum extra good time he could acquire unde…
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Dewayne Frank Noble, III v. State, 374 So. 2d 1116 (Fla. 1st DCA 1979)…e disallowing credit for good time or gain time during the first three years of the split sentence is illegal. We disagree. [*1117] In Wright v. State, 342 So. 2d 565 (Fla. 1st DCA 1977) [which cited this court’s previous opinion in Mackey v. State, 310 So. 2d 312 (Fla. 1st DCA 1975)], we noted that: It is permissible for the trial court to require that the initial imprisonment pri- or to release on probation be served without credit for gain time or good time provided there is sufficient time left in the se…