Forbes v. Singletary, 87358

Decision Date31 October 1996
Docket NumberNo. 87358,87358
Citation684 So.2d 173
Parties21 Fla. L. Weekly S481 Michael FORBES, Petitioner, v. Harry SINGLETARY, etc., Respondent.
CourtFlorida Supreme Court

Michael Forbes, Bonifay, pro se.

Susan A. Maher, Deputy General Counsel, Department of Corrections, Tallahassee, for Respondent.

GRIMES, Justice.

Michael Forbes petitioned this Court for writ of habeas corpus. We have jurisdiction. Art. V, § 3(b)(9), Fla. Const.

Following receipt of a response by respondent, we directed that Forbes be released from prison. However, the Court reserved jurisdiction so that we could issue an opinion in order to address the systemic problem underlying Forbes' particular situation.

In 1992, Forbes was convicted for lewd and lascivious acts involving a child and sentenced to two and one-half years' imprisonment followed by seven and one-half years' probation. The offenses were committed between February 1, 1989, and June 30, 1989. Based on time actually served and accumulated gain time, Forbes was released from prison and began his probation in August of 1993. Forbes subsequently violated the conditions of his probation and was resentenced to six years less 54 days of credit for time spent in jail after arrest for violation of probation, 120 days of original county jail time credit, "and all time previously served." In computing Forbes' tentative release date, the Department of Corrections (DOC) gave him credit for the time he had actually served in DOC custody but did not award him credit for the unforfeited basic gain time and incentive gain time he had accumulated while serving his original sentence.

Forbes' petition asserts that pursuant to State v. Green, 547 So.2d 925 (Fla.1989), and Tripp v. State, 622 So.2d 941 (Fla.1993), he was entitled to be given credit for the unforfeited basic and incentive gain time he earned during his original incarceration. In its response, DOC concedes that under Green 1 Forbes may be entitled to credit for the unforfeited gain time he accumulated while serving his original sentence. However, DOC contends that it must rely on the sentencing documents to apply credits and that it has consistently interpreted directions such as this to mean that credit for time served only encompassed the time actually served in county jail and state custody.

In sentencing Forbes, the judge utilized the form set out in Florida Rule of Criminal Procedure 3.986(d). The sentence specified:

JAIL CREDIT _X_ It is further ordered that the Defendant shall be allowed a

total of 174 days as credit for time incarcerated prior

to imposition of this sentence.

PRISON CREDIT _X_ It is further ordered that the Defendant be allowed credit

for all time previously served on this count in the

Department of Corrections prior to resentencing.

Sentencing is the obligation of the court rather than DOC. Thomas v. State, 612 So.2d 684, 684 (Fla. 5th DCA 1993). Thus, we can understand DOC's reluctance to take a position contrary to its interpretation of the sentencing order. Yet, judges are required to render sentences according to law. When Forbes was sentenced, our opinion in Green, which reasoned that "accrued gain time is the functional equivalent of time spent in prison," represented the law of this state. Therefore, in the absence of language to the contrary, 2 it must be assumed that the sentencing judge's order that Forbes "be allowed credit for all time previously served ... in the Department of Corrections prior to resentencing" contemplated that Forbes should receive credit for unforfeited gain time. DOC's interpretation, said to have been "established over decades," that credit for time served meant only time spent while actually incarcerated was necessarily rejected by the majority opinion in Green. State v. Green, 547 So.2d 925 (Fla.1989) ("[C]redit for every day ... spent in jail ... is what credit for time served is all about." Id. at 927 (Grimes, J., dissenting).). DOC was thus obligated to interpret Forbes' sentencing order to include credit for unforfeited basic and incentive gain time. 3 When Forbes was given credit for such unforfeited gain time, it was apparent that he was entitled to immediate release.

In its response to Forbes' petition, DOC complained of a larger problem created by changes in the laws relating to credit for unforfeited gain time and by the inadequacy of the disparate sentencing forms used by the sentencing courts throughout the state. In 1989, the legislature enacted two statutes bearing on this subject which remain in effect. Section 948.06(6), Florida Statutes (1989), provided that whenever probation was revoked, an offender "may be deemed to have forfeited" all gain time earned up to the date of his release on probation. We construe this language to mean that for defendants who committed their offenses on or after October 1, 1989, the sentencing judge is permitted, but not required, to forfeit the credit for gain time otherwise available under Green. Section 944.28(1), Florida Statutes (1989), also authorized DOC, on the revocation of probation and without notice or hearing, to declare a forfeiture of all gain time earned prior to the revocation. Thus, for defendants who committed their offenses between October 1, 1989, and December 31, 1993, DOC, like the sentencing judge, has the discretion to forfeit credit for prior gain time upon the revocation of probation. Even though the sentencing judge has authorized credit for unforfeited gain time, DOC may now unilaterally declare it forfeited. Most recently, the legislature enacted section 921.0017, Florida Statutes (1995), which eliminated all credit for any type of gain time earned prior to the revocation of probation with respect to offenses committed on or after January 1, 1994.

DOC laments that it is faced with a variety of sentencing orders on this matter which are subject to differing interpretations....

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26 cases
  • Gibson v. Florida Dept. of Corrections, 1D02-0118.
    • United States
    • Florida District Court of Appeals
    • October 9, 2002
    ...accrued gain-time because that gain-time had been specifically awarded by the sentencing court is clearly meritless. See Forbes v. Singletary, 684 So.2d 173 (Fla.1996). Thus, the crux of the issue is whether DOC correctly concluded that Eldridge controls the manner in which the forfeiture o......
  • Kelly v. State
    • United States
    • Florida District Court of Appeals
    • August 17, 2001
    ...of powers clause. The courts generally agree that although sentencing in criminal cases is the obligation of the court, Forbes v. Singletary, 684 So.2d 173 (Fla.1996), a statute that requires imposition of a mandatory sentence does not violate the separation of powers clause. State v. Cotto......
  • Navarro v. State
    • United States
    • Florida District Court of Appeals
    • July 23, 2014
    ...Fla. Stat. (2002) ; Johnson v. State, 60 So.3d 1045 (Fla.2011) ; Eldridge v. Moore, 760 So.2d 888 (Fla.2000) ; Forbes v. Singletary, 684 So.2d 173 (Fla.1996) ; Sweet v. State, 987 So.2d 747 (Fla. 2d DCA 2008) ; Bizzell v. State, 912 So.2d 386 (Fla. 2d DCA 2005) ; Paul v. State, 830 So.2d 95......
  • Williams v. DEPT. OF CORRECTIONS, 97-3497.
    • United States
    • Florida District Court of Appeals
    • May 21, 1999
    ...finding that the DOC had acted within its discretion in forfeiting Williams' gain time pursuant to section 944.28(1). Forbes v. Singletary, 684 So.2d 173, 174-75 (Fla.1996); Bradley v. State, 631 So.2d 1096, 1098 (Fla.1994). We agree with the trial court's finding because any attempt to com......
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