Lancaster v. State, 94-2471

• Citation: 656 So.2d 533
• Decision Date: 07 June 1995
• Docket Number: No. 94-2471,94-2471
• Parties: 20 Fla. L. Weekly D1345 Anthony LANCASTER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 533

656 So.2d 533

20 Fla. L. Weekly D1345

Anthony LANCASTER, Appellant, v. STATE of Florida, Appellee.

No. 94-2471.

District Court of Appeal of Florida,

Fourth District.

June 7, 1995.

Rehearing Denied July 20, 1995.

Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Sarah B. Mayer, Asst. Atty. Gen., West Palm Beach, for appellee.

PARIENTE, Judge.

Defendant, Anthony Lancaster, appeals the trial court's sentencing order following revocation of his probation. He challenges both the legality of his thirty-year sentence, claiming that it exceeds the appropriate guidelines sentencing range, and the failure of the trial court to award him proper credit for gain time on his previous sentence.

The state concedes and we agree that the trial court impermissibly sentenced defendant outside the guidelines ranges in effect on the date of the original crime, May 3, 1987. Prior to July 1, 1988, sentencing guidelines specified recommended ranges but not permitted ranges. Application of the permitted ranges to offenses committed prior to July 1, 1988 violate the constitutional prohibition against ex post facto laws. See Washington v. State, 564 So.2d 168, 169 (Fla. 5th DCA 1990); Roberson v. State, 555 So.2d 976, 979 (Fla. 1st DCA 1990). On this basis, defendant's thirty-year sentence, which falls within the current permitted guidelines range but exceeds the appropriate recommended guidelines range, is illegal. Accordingly, we reverse defendant's sentence and remand for resentencing within the recommended range of 22-27 years.

Defendant further complains that the trial court erred in failing to award him credit for all time previously served on his original sentence in addition to gain time previously accrued on his original sentence. In its order sentencing defendant to thirty years in prison, the trial court provided for both jail credit and gain time by indicating that:

Defendant is allowed credit for 334 days county jail credit served between date of arrest as a violator and date of resentencing. The Department of Corrections shall apply original jail credit awarded and shall compute and apply credit for time served and unforfeited gain-time awarded during prior service of case number [87-351].

This sentencing order expressly provides for the award of unforfeited gain time and properly delegates to the Department of Corrections 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). ¹

Concerning defendant's claim that he is entitled to credit for his entire seventeen-year jail term of his original sentence, prior to the supreme court's recent decision in Orosz v. Singletary, 655 So.2d 1112 (Fla.1995), the supreme court had indicated that gain time to be credited was limited to earned gain time and did not include administrative gain time and provisional credits. See Tripp v. State, 622 So.2d 941, 943 n. 2 (Fla.1993). After the sentencing order and the briefing in this case, the supreme court decided Orosz, which provides that a defendant who committed an...