McBride v. State, 92-00575
| Decision Date | 10 July 1992 |
| Docket Number | No. 92-00575,92-00575 |
| Citation | 601 So.2d 1335 |
| Parties | Jason McBRIDE, Appellant, v. STATE of Florida, Appellee. 601 So.2d 1335, 17 Fla. L. Week. D1685 |
| Court | Florida District Court of Appeals |
Jason McBride appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm.
In March 1991, Mr. McBride pleaded guilty in the Sixth Judicial Circuit (Pinellas County) to burglary of a conveyance. He received a five-year sentence and was classified as a habitual offender. At that time, he was incarcerated on several sentences from the Eighteenth Judicial Circuit (Brevard County). He had apparently received a total of twenty years' incarceration for these prior offenses. The Brevard County sentences, however, were not classified as habitual offender sentences.
In his motion, appellant alleges that his plea in the Pinellas County case was induced by misrepresentations of his counsel. He claims that his counsel promised him that basic gain-time, provisional credits and the control release date on the Brevard County sentences would not be affected by the habitual offender sentence imposed in the Pinellas case. Because of a letter from the Florida Parole Commission, appellant is convinced that he inadvertently lost gain-time and an opportunity for a control release date on the twenty-year sentence by pleading to the five-year habitual offender sentence. With the benefit of gain-time and provisional credits, the twenty-year sentence could be served in about the same time required to serve the five-year habitual offender sentence. Without such credits, the twenty-year sentence could be substantially longer.
The trial court summarily denied the appellant's motion and explained that gain-time on the Brevard County sentences would be unaffected by the habitual offender sentence in the Pinellas case. The trial court correctly concluded, however, that appellant would not be released from prison when he finished the Brevard County sentences unless he had also fully served the additional habitual offender sentence. Thus, the appellant's motion was denied because the representations he received from counsel were correct.
The appellant is entitled only to limited gain-time on the Pinellas County habitual offender sentence. Sec. 775.084(4)(e), Fla.Stat. (1991). That sentence, however, does not alter his ability to earn gain-time on the earlier imposed sentences. 1 Any gain-time granted and not forfeited on the Brevard County sentences, earned in the past or in the future, is not affected by the later imposed habitual offender sentence. See Sec. 944.275(3)(b), Fla.Stat. (1991). The plea and sentence in the Pinellas County case are not acts that should have resulted in a forfeiture of gain-time. See Sec. 944.28, Fla.Stat. (1991).
As to the representations concerning the provisional credits and control release date, appellant has been confused because the letter written to him by the Florida Parole Commission is not completely responsive to his concerns. 2 In the letter the commission cites Florida Administrative Code Rule 23-22.008(3)(a)(7) as authority rendering appellant ineligible for control release because he is sentenced as a habitual offender. He is concerned about a control release date for the Brevard County sentences, but we read the letter to refer to his Pinellas County case. The fact that he has received the additional habitual offender sentence necessarily prevents him from being released until he serves the additional sentence. It does not render him ineligible for a control release date on the Brevard County offenses because it is possible that the control release date on those offenses will occur after he has completed his sentence on the Pinellas County case.
Florida Administrative Code Rule 23-22.008(3)(a)7., regarding "Control Release...
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Downs v. Crosby, 2D03-4364.
...944.277(1)(g), Florida Statutes (1991), as interpreted in Dugger v. Anderson, 593 So.2d 1134 (Fla. 1st DCA 1992), and McBride v. State, 601 So.2d 1335 (Fla. 2d DCA 1992). Section 944.277(1)(g), Florida Statutes (1991), excludes from eligibility to receive provisional credits an inmate who "......
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Flynn v. Flynn, 2D13–3329.
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