Jenkins v. State, 93-4123
| Decision Date | 29 September 1994 |
| Docket Number | No. 93-4123,93-4123 |
| Parties | 19 Fla. L. Weekly D2098 Jackie JENKINS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Jackie Jenkins, pro se.
No appearance for appellee.
Appellant, who was resentenced after violating the probationary portion of his split sentence, appeals the summary denial of his motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). We find that appellant's motion, when considered with the attachments appended thereto, 1 sets forth a facially sufficient claim that he is entitled to jail-time credit for time previously served on the incarcerative portion of his split sentence.
On or about June 1, 1990, appellant committed the offense of attempted sexual battery. He subsequently entered a plea to that offense and was sentenced to 22 months in state prison followed by two years of probation. He served approximately six months in prison and was released to serve the probationary term. His 22-month sentence (668 days) was satisfied as follows:
220 days Basic Gain time
k 166 days Original County Jail Credit
k 72 days Additional Gain time
k 209 days Time Served in Custody
k 1 day Time Not Served Due to Early Release Through the Transitional
Assistance Program
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668 days (Twenty-Two Months in Days)
Appellant violated his probation. After serving 28 days in county jail, he was resentenced to 7 1/2 years in state prison. Upon resentencing, the trial court authorized credit for 166 days of original county jail credit, 28 days for time served in county jail after violation of probation, and unforfeited gain time. Upon his return to the custody of the DOC, the DOC forfeited the 220 days of basic gain time and 72 days of additional gain time granted when appellant served his 22-month sentence, as it was permitted to do by section 944.28(1), Florida Statutes (1989). Bradley v. State, 631 So.2d 1096 (Fla.1994).
However, it appears that the trial court should also have granted appellant credit against his new sentence for the 209 days served in the custody of DOC on his previous sentence. Bradley v. State, 631 So.2d 1096 (Fla.1994); Svenson v. State, 631 So.2d 326 (Fla. 2d DCA 1994). We note that DOC has conceded appellant is entitled to this credit. 2
Accordingly, the cause is remanded to the trial court for further consideration in light of the authorities cited above. Should the trial court again determine that the Rule 3.800(a) motion should be denied, the order should be supported by those portions of the record which refute appellant's claim of entitlement to additional credit for time...
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Lancaster v. State, 94-2471
...the task of determining the amount of gain time to be credited. See Bacon v. State, 647 So.2d 332 (Fla. 5th DCA 1994); Jenkins v. State, 642 So.2d 1187 (Fla. 1st DCA 1994); Green v. State, 636 So.2d 830 (Fla. 5th DCA 1994). Concerning defendant's claim that he is entitled to credit for his ......