Kirkman v. Wainwright, 85-105
| Decision Date | 15 February 1985 |
| Docket Number | No. 85-105,85-105 |
| Citation | 465 So.2d 1262,10 Fla. L. Weekly 477 |
| Parties | 10 Fla. L. Weekly 477 Anthony M. KIRKMAN, Petitioner, v. Louie L. WAINWRIGHT, Secretary, Department of Corrections, Respondent. |
| Court | Florida District Court of Appeals |
James B. Gibson, Public Defender, and David A. Henson, Asst. Public Defender, Daytona Beach, for petitioner.
Jim Smith, Atty. Gen., Tallahassee, and Margene A. Roper, Asst. Atty. Gen., Daytona Beach, for respondent.
Kirkman petitions this court for a writ of habeas corpus on the grounds that he is entitled to immediate release from the Department of Corrections. We agree and issue the writ.
Petitioner was sentenced to thirty years for a robbery conviction in 1975, ten years of which were to be served in prison and twenty years on probation. He served approximately four years, and then was released on parole.
In 1984, he was found guilty of violating his probation, 1 and he was sentenced to a four and one-half year prison term. This was within the Sentencing Guidelines, Fla.R.Crim.P. 3.701, presumptive sentence range, according to his scoresheet, 2 and the court at sentencing did not state it was "departing" from the Guidelines sentence. It also credited Kirkman with ninety days for the time served after his probation violation until time of sentencing. However, the court gave him no credit for the four years served prior to his release on parole.
Kirkman filed an appeal from the trial court's denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850, to obtain credit for that prison term and this petition for writ of habeas corpus, on the grounds that had he properly been given credit for the prior prison time served, he was entitled to be immediately released.
The state argues that the trial court intended to sentence Kirkman to a term of years which would be sufficiently long to result in a four and one-half year term, after giving him credit for the prior time served in prison. This would have required the trial court to enter a "departure" sentence under the Guidelines, which it clearly could have done. Fla.R.Crim.P. 3.701(d)(11); Hendrix v. State, 455 So.2d 449 (Fla. 5th DCA 1984) (); Carter v. State, 452 So.2d 953 (Fla. 5th DCA 1984) ().
However, although the trial court may have intended this result, it did not sentence Kirkman in the manner to achieve that goal. Meintzer v. State, 399 So.2d 133 (Fla. 5th DCA 1981). Having sentenced him to four and one-half years, neither the trial court, nor we, can change that sentence. Harrison v. Wainwright, 408 So.2d 800 (Fla. 5th DCA), rev. denied, 419 So.2d 1201 (Fla.1982).
It is clear that pursuant to section 921.161, Florida Statutes (1983), a criminal defendant being sentenced after the violation of his probation, is entitled to receive credit on that sentence for all prison or jail time served, including that which preceded his release on probation. Harrison; Meintzer; State v. Jones, 327 So.2d 18 (F...
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Martin v. State, 87-519
...(Fla. 5th DCA 1984), rev. denied, 466 So.2d 212 (Fla.1985); Whitchard v. State, 459 So.2d 439 (Fla. 3d DCA 1984); Kirkman v. Wainwright, 465 So.2d 1262 (Fla. 5th DCA 1985); Frizzell v. State, 473 So.2d 290 (Fla. 2d DCA 1985); Pendergrass v. State, 487 So.2d 35 (Fla. 4th DCA 1986); Everett v......
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Crosby v. State, 85-804
...sentence on the violation proceedings. See sec. 921.161, Fla.Stat. (1983); State v. Jones, 327 So.2d 18 (Fla.1976); Kirkman v. Wainwright, 465 So.2d 1262 (Fla. 5th DCA 1985); Roesch v. State, 446 So.2d 269 (Fla. 2d DCA 1984); Dickerson v. State, 427 So.2d 205 (Fla. 2d DCA 1983); Hernandez v......
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Pendergrass v. State, s. 85-213
...calls attention, however, to an opinion of the Fifth District Court of Appeal and cases cited therein. See Kirkman v. Wainwright, 465 So.2d 1262 (Fla. 5th DCA 1985); Harrison v. Wainwright, 408 So.2d 800 (Fla. 5th DCA 1982), review denied, 419 So.2d 1201 (Fla.1982); and Meintzer v. State, 3......
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Favors v. State, 89-1505
...appellant is due 209 days credit for previous jail time served. Davis v. State, 543 So.2d 437 (Fla. 2d DCA 1989); Kirkman v. Wainwright, 465 So.2d 1262 (Fla. 5th DCA 1985). SENTENCE VACATED, DANIEL, C.J., and HARRIS, J., concur. ...