Gibson v. Florida Dept. of Corrections

• Decision Date: 21 October 2004
• Docket Number: No. SC02-2362.,SC02-2362.
• Citation: 885 So.2d 376
• Parties: Thomas B. GIBSON, Petitioner, v. FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.
• Court: Florida Supreme Court

885 So.2d 376

Thomas B. GIBSON, Petitioner, v. FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.

No. SC02-2362.

Supreme Court of Florida.

October 21, 2004.

Robert Augustus Harper and Michael Robert Ufferman of Robert Augustus Harper Law Firm, P.A., Tallahassee, FL, for Petitioner.

Louis A. Vargas, General Counsel and Susan A. Maher, Deputy General Counsel, Florida Department of Corrections, Tallahassee, FL, for Respondent.

ON REHEARING

PARIENTE, C.J.

This case concerns the statutory authority of the Department of Corrections (DOC) to forfeit gain time from an expired sentence and apply the forfeiture to a sentence being served on a different offense. We review Gibson v. Florida Department of Corrections, 828 So.2d 422 (Fla. 1st DCA 2002), in which the First District Court of Appeal certified the following question of great public importance:

Does the forfeiture penalty enunciated in Eldridge v. Moore, 760 So.2d 888 (Fla.2000), apply where a defendant receives a sentence of incarceration for one offense followed by a sentence of probation for another offense, where both crimes were scored on a single scoresheet and the trial court awards prison credit pursuant to Tripp v. State, 622 So.2d 941 (Fla.1993), upon violation of probation for the second offense?

Id. at 424.¹

I. FACTS AND PROCEDURAL HISTORY

In three different cases arising from crimes committed on different dates in 1993, Gibson was convicted of committing numerous counts of forgery and uttering a forged instrument or forged bills, all third-degree felonies. All the offenses were included in a single guidelines scoresheet because the cases were pending for sentencing at the same time.² The trial court sentenced Gibson to consecutive terms of five years in prison in Case Nos. 93-216 and 93-297 for a total of ten years' incarceration, followed by consecutive terms of five years on probation on the counts of uttering a forged instrument and five years on probation on the counts of forgery in Case No. 93-360 for a total of ten years' probation. Thus, the sanctions in Case Nos. 93-216 and 93-297 contained no probationary component and, as originally imposed, the sanctions in Case No. 93-360 contained no incarceration.

Gibson completed his cumulative ten-year sentence in Case Nos. 93-216 and 93-297 through a combination of time actually served and accrued gain time. Computations by the DOC show that Gibson fulfilled his ten-year sentence (consisting of 3650 days) by serving 1660 days in prison and 21 days in county jail, for a total of 1681 days (approximately 4.6 years) actually served, and by accruing 1969 days (approximately 5.4 years) of unforfeited gain time.³

Upon his release from prison in April 1998, Gibson commenced the terms of probation in Case No. 93-360. He subsequently violated the conditions of probation. The trial court revoked probation and sentenced Gibson to consecutive terms of four and three years in prison for a total of seven years' incarceration. On Gibson's motion, and pursuant to our decision in Tripp v. State, 622 So.2d 941 (Fla.1993), the trial court granted credit for time served of 1681 days from the completed sentences in Case Nos. 93-216 and 93-297 against the overall seven-year sentence in Case No. 93-360.

After Gibson began serving his sentences for violation of probation in Case No. 93-360, the DOC declared a forfeiture of the 1969 days of previously unforfeited gain time from the sentences in Case Nos. 93-216 and 93-297 pursuant to section 944.28(1). DOC's policy in applying the gain time forfeiture is to compare the length of the new sentence after deduction for time previously served to the amount of the forfeiture penalty, and to require the prisoner to serve the greater of the two. Essentially, this method views the forfeiture penalty and the new sentence less time served as concurrent sentences, and ensures that the prisoner will serve no less than the forfeiture penalty.⁴

In Gibson's case, the new sentence of seven years (2555 days) less time previously served of 4.6 years (1681 days) would have yielded a net sentence of 2.4 years (874 days). Because the gain-time forfeiture penalty of 5.4 years (1969 days) was greater than the revocation sentence of 2.4 years after deduction of Tripp credit, the DOC in effect required Gibson to serve the forfeiture penalty. Thus, the DOC applied section 944.28(1) in a manner that required Gibson to serve the forfeiture penalty as the punishment for violation of probation.

Gibson challenged the DOC's authority to forfeit the gain time by filing a petition for a writ of mandamus, which the trial court denied. The First District agreed with the trial court and denied his petition for common-law certiorari, concluding that the forfeiture of gain time from the expired sentences in Case Nos. 93-216 and 93-297 applied to Gibson's sentences in Case No. 93-360. The First District explained that it was guided by this Court's holding in Tripp that "credit for time served on the first offense must be awarded on the sentence imposed after revocation of probation on the second," and its previous interpretation of Tripp"to mean that separate crimes and sentences may constitute a split sentence where both crimes were scored on a single scoresheet." Gibson, 828 So.2d at 423 (relying on Larimore v. State, 823 So.2d 287 (Fla. 1st DCA 2002)).

In a specially concurring opinion, Judge Lewis agreed with the majority view that the forfeiture of gain time from the sentences in Case Nos. 93-216 and 93-297 could be applied to the sentence upon revocation of probation in Case No. 93-360 "because the offenses were [originally] scored on a single scoresheet and considered together in forming his scoresheet sentence." Id. at 424-25 (Lewis, J., specially concurring). Judge Benton dissented. In his view, the gain-time forfeiture unlawfully revived the expired sentences in Case Nos. 93-216 and 93-297 and made them components of an unauthorized "general sentence." Id. at 426-28 (Benton, J., dissenting).

II. ANALYSIS

This case involves an issue of statutory interpretation. We thus begin with the actual language of the statutes that the DOC relies upon for its assertion of authority to declare a forfeiture penalty of gain time from a sentence that was already fully served and apply it to another sentence imposed upon revocation of probation.

A. Statutory Authority

Section 944.28(1), Florida Statutes (1993), provides:

If a prisoner is convicted of escape, or if the clemency, conditional release as described in chapter 947, probation or community control as described in chapter 948, provisional release as described in s. 944.277, parole, or control release as described in s. 947.146 granted to the prisoner is revoked, the department may, without notice or hearing, declare a forfeiture of all gain-time earned according to the provisions of law by such prisoner prior to such escape or his or her release under such clemency, conditional release, probation, community control, provisional release, control release, or parole.

(Emphasis supplied.)⁵ Section 944.28(1) is one of two provisions that authorized forfeiture of gain time upon revocation of probation at the time of the offenses in this case. The other, section 948.06(6), Florida Statutes (1993), provided:

Any provision of law to the contrary notwithstanding, whenever probation, community control, or control release, including the probationary [or] community control portion of a split sentence, is violated and the probation or community control is revoked, the offender, by reason of his misconduct, may be deemed to have forfeited all gain-time or commutation of time for good conduct, as provided by law, earned up to the date of his release on probation, community control, or control release.

(Emphasis supplied.) This subsection provides general authority to forfeit gain time and specifically refers to split sentences.⁶

The issue in this case is whether the DOC may apply the forfeiture penalty of section 944.28(1) across offenses to the guidelines sentence imposed upon violation of probation for a crime that was originally included in the same guidelines scoresheet as the offense on which the gain time was accrued. Section 944.28(1) does not specify whether the forfeiture penalty applies to split sentences. Its analog, section 948.06(6) (now section 948.06(7), Florida Statutes (2003)), specifies that the forfeiture penalty applies to the revocation of probation or community control imposed as part of a split sentence.⁷ Similarly, section 921.0017, Florida Statutes (2003), which applies to offenses committed on or after January 1, 1994, specifies that upon revocation of probation when an offender is serving a "split sentence pursuant to section 948.01," the trial court shall only order credit for time served and not for gain time.

Although none of the statutory provisions governing forfeiture of gain time define a split sentence, two provisions in section 948.01, Florida Statutes (2003), relating to the trial courts' sentencing options, do explain the split sentence option. Section 948.01(6) provides, in full:

Whenever punishment by imprisonment for a misdemeanor or a felony, except for a capital felony, is prescribed, the court, in its discretion, may, at the time of sentencing, impose a split sentence whereby the defendant is to be placed on probation or, with respect to any such felony, into community control upon completion of any specified period of such sentence which may include a term of years or less. In such case, the court shall stay and withhold the imposition of the remainder of sentence imposed upon the defendant and direct that the defendant be placed upon probation or into community control after serving such period as may be imposed by the court. The period of probation or community control shall commence immediately upon the release of the defendant from incarceration, whether by parole or gain-time allowances.

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