Crosby v. Harvey

• Decision Date: 17 December 2003
• Docket Number: No. 4D03-3119.,4D03-3119.
• Citation: 861 So.2d 102
• Parties: James V. CROSBY, Jr., Secretary, Florida Department of Corrections, Petitioner, v. Otis HARVEY, Respondent.
• Court: Florida District Court of Appeals

861 So.2d 102

James V. CROSBY, Jr., Secretary, Florida Department of Corrections, Petitioner, v. Otis HARVEY, Respondent.

No. 4D03-3119.

District Court of Appeal of Florida, Fourth District.

December 17, 2003.

Chris Korn, Tallahassee, for petitioner.

No appearance for respondent.

GUNTHER, TAYLOR and MAY, JJ., concur.

PER CURIAM.

The Department of Corrections seeks certiorari review of a circuit court order directing the Department to award respondent Otis Harvey, a state prisoner, gain time for the time he was incarcerated at the Broward County Jail waiting to testify in a criminal prosecution. We grant the petition and vacate the order, because the sentencing court lacks authority to award gain time to state prisoners. That authority rests within the exclusive province of the Department. See State v. Green, 547 So.2d 925, 927 (Fla.1989); Walker v. State, 619 So.2d 518, 519 (Fla. 1st DCA 1993). Where a sentencing court attempts to either bar or grant gain time awards, those portions of the sentencing order have been struck or treated as "surplusage." See Singletary v. Coronado, 673 So.2d 924 (Fla. 2d DCA 1996)(holding that trial court lacked authority to award gain time to prisoners who testified at state's behest); Shupe v. State, 516 So.2d 73 (Fla. 5th DCA 1987)(striking portion of sentence ordering that no gain time be allowed until restitution was paid); Hall v. State, 493 So.2d 93 (Fla. 2d DCA 1986)(finding that trial court could not bar gain time upon violation of probation by defendant).

PETITION GRANTED.

GUNTHER, TAYLOR and MAY, JJ., concur.