Gaston v. State, 92-03604

• Decision Date: 06 January 1993
• Docket Number: No. 92-03604,92-03604
• Citation: 613 So.2d 496
• Parties: 18 Fla. L. Week. D239 Richard C. GASTON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 496

613 So.2d 496

18 Fla. L. Week. D239

Richard C. GASTON, Appellant, v. STATE of Florida, Appellee.

No. 92-03604.

District Court of Appeal of Florida Second District.

Jan. 6, 1993.

Rehearing Denied Feb. 22, 1993.

Susan A. Maher, for State.

Susan Hartmann, Bradenton, for defendant.

PER CURIAM.

Richard Gaston appeals an order of the circuit court entered after final judgment in Gaston's felony criminal case. Finding that the court was without jurisdiction to enter the order in question, we reverse.

In August, 1991, Gaston's attorney and an assistant state attorney signed, and the circuit court approved, a "stipulation to credit defendant for time served." That order, rendered September 3, 1991, recognized a total of 55 days' gain time awarded during Gaston's incarceration in the Manatee County Jail. See Sec. 951.21, Fla.Stat. (1991).

Gaston later wrote a letter informing the circuit court that the Department of Corrections "has decided to outright disobey your court order." The Department explained that it, not the court, has the sole authority to award gain time to state prisoners. The Department does not recognize gain time awarded to county jail inmates pursuant to section 951.21. The circuit court subsequently granted a formal motion filed by the Department. It is this order, styled "Order vacating order of September 3, 1991," that Gaston appeals.

As pointed out in the Department's pleadings, our court agrees there is no requirement that the Department award credit for county gain time. DelToro v. State, 584 So.2d 51 (Fla. 2d DCA), rev. dismissed, 591 So.2d 180 (Fla.1991). Nevertheless, the peculiar and perhaps unique facts of this case suggest this was not the true intent of the vacated 1991 order. Instead, Gaston construes that order in what we deem is a reasonable manner. The practical effect of the stipulation and order was not to require the Department of Corrections to award additional gain time, but rather to shorten Gaston's overall sentence by 55 days. We note that the 1991 order was entered within sixty days of our mandate in Gaston's plenary appeal. ¹ This fact lends weight to Gaston's argument that the order essentially was one mitigating his sentence pursuant to Florida Rule of Criminal Procedure 3.800(b).

Mitigation of a lawful sentence is largely discretionary with the trial court. ² It is for this reason that orders denying mitigation are not appealable. Davenport v. State, 414 So.2d 640 (Fla. 1st DCA 1982). If the state objects to such reduction, it is not without a remedy. For example, a trial court lacks jurisdiction to mitigate a sentence outside the rather narrow time constraints imposed by rule 3.800(b), and we have reviewed untimely orders by certiorari. See, e.g., State v. Rhodes, 554 So.2d 1229 (Fla. 2d DCA 1990). Since the state may appeal downward departures from the sentencing guidelines, presumably mitigation of a sentence below the guideline recommendation would result in an order appealable pursuant to Florida Rule of Appellate Procedure 9.140(c)(1)(J). In the present case, however, the state did not object to the shortening of Gaston's sentence. That decision therefore became final when no appeal was taken. ³

Perhaps confusion might have been averted in 1991 had the circuit court issued an amended judgment and sentence reflecting additional credit for time served, or referred to rule 3.800(b) somewhere in its order. However, these...