Miller v. State, 5D03-3440.

• Citation: 882 So.2d 480
• Decision Date: 17 September 2004
• Docket Number: No. 5D03-3440.,5D03-3440.
• Parties: Robert Allen MILLER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

882 So.2d 480

Robert Allen MILLER, Appellant, v. STATE of Florida, Appellee.

No. 5D03-3440.

District Court of Appeal of Florida, Fifth District.

September 17, 2004.

James B. Gibson, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.

SHARP, W., J.

Miller appeals from an amended order rendered by the trial court in response to his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a), seeking to challenge his 27 year prison sentence followed by 20 years on probation, on three grounds. On the first ground, the state conceded Miller's total sentence of 47 years was illegal and the trial court made a proper correction. The trial court ruled against Miller on the second ground (erroneous computation of his prior record on his scoresheet), which is not challenged here. The third ground at issue in this appeal is that the judge failed to give Miller credit for the 960 days he served in county jails awaiting disposition of his post-judgment motions, which had been caused by several judicial reassignments and reassignments of defense lawyers. We affirm, but remand to the trial court to further clarify its order consistent with its oral statements at the resentencing.

At the resentencing hearing, the judge said he felt "constrained" to grant the defense's request to give Miller credit for all of the time served in county jails, while awaiting disposition of his motions concerning his sentence. However, the sentencing order failed to expressly give Miller credit for time served in the county jails. The defense filed a motion to modify on that ground. The court rendered an Order to Correct/Modify Sentence, which provided that on count one, Miller is "credited with the 960 days served in the Marion County jail and the Citrus County jail for the purpose of properly computing the earned credit and gain time as compiled by the Department of Corrections."

However, approximately two weeks later, after Miller had commenced serving his sentence, the trial court sua sponte rendered an Amended Order on Defendant's Motion to Correct/Modify sentence. It stated that the court intended to award credit for time served and not an award of gain time. It stated that Miller was entitled to credit for time previously served on this case both pre-sentencing and post-sentencing. "However, it is not this Court's intention to award this Defendant any credit for gain time that would or could have been earned had this Defendant been in the custody of the Department of Corrections during the aforementioned time period. The award of gain time is purely at the discretion of the Department of Corrections."

The authority to regulate gain time resides with the Department of Corrections. Moore v. Pearson, 789 So.2d 316 (Fla.2001). If, in sentencing, a court attempts to bar or grant gain time, such language has been treated as surplusage or stricken. See Singletary v. Coronado, 673 So.2d 924 (Fla. 2d DCA 1996)

; Shupe v. State, 516 So.2d 73 (Fla. 5th DCA 1987).

However, a court has the authority and jurisdiction to effect a fair sentence by awarding credit for time served, to insure that a defendant is accorded due process where, due to circumstances beyond the defendant's control, the right to accrue gain time has been denied. In ...