Pearson v. Moore, No. 1D99-2520.

CourtCourt of Appeal of Florida (US)
Writing for the CourtBENTON, J.
Citation767 So.2d 1235
Decision Date14 August 2000
Docket NumberNo. 1D99-2520.
PartiesSteve PEARSON, Petitioner, v. Michael W. MOORE, Secretary, Florida Department of Corrections, Respondent.

767 So.2d 1235

Steve PEARSON, Petitioner,
v.
Michael W. MOORE, Secretary, Florida Department of Corrections, Respondent

No. 1D99-2520.

District Court of Appeal of Florida, First District.

August 14, 2000.


Baya Harrison, III, Monticello, for Petitioner.

Susan A. Maher, Deputy General Counsel; Sheron Wells, Assistant General Counsel, Department of Corrections, Tallahassee, for Respondent.

BENTON, J.

By petition for writ of certiorari to review the denial of a petition for writ of

767 So.2d 1236
mandamus, we are asked to decide whether the Department of Corrections (DOC) may refuse to give effect to a sentence imposed by a circuit court. Concluding that any such refusal raises overriding questions of separation of powers, we hold that the court below departed from the essential requirements of law, grant the petition for writ of certiorari, quash the order denying the writ of mandamus and remand for proceedings consistent with this opinion

The petition for writ of mandamus alleged that the sentencing court specified that the incarcerative portion of the sentence in question was to terminate at the same time as another sentence the petitioner was already serving, but that DOC refused to give this provision effect.1

767 So.2d 1237
When DOC declined to treat the incarcerative portion of the sentence in question as ending along with the earlier sentence, Mr. Pearson filed an informal inmate grievance, a formal grievance, and an administrative appeal, the petition alleges, but DOC denied the grievances and the appeal on grounds that the sentence was incompatible with section 944.275(4)(b)3., Florida Statutes (1997). This provision prohibits the award of gain-time that would result in a prisoner's serving less that eighty-five percent of a sentence

After exhausting his administrative remedies in this fashion, it is alleged, Mr. Pearson filed a petition for writ of mandamus to compel DOC to give effect to his coterminous2 sentence. The circuit court in which he filed (which was not the sentencing court) denied the petition, adopting DOC's reasoning:

[Mr. Pearson] was sentenced to an overall thirteen year term in Case No. 96-20 for offenses committed on or after October 1, 1995. Section 944.275(4)(a)3 [sic] is directed to [DOC] and provides that inmates serving sentences imposed for offenses committed on or after October 1, 1995 cannot be released prior to serving 85% of their sentence. Thus, [DOC] has properly structured [Mr. Pearson's] 13 year sentence to run concurrent but not co-terminous to an existing 5 year sentence which was imposed for an offense committed prior to October 1, 1995.

While we do not understand how section 944.275(4)(b)3 can be read as anything more than a limitation on DOC's authority to grant gain-time, we are concerned here with the initial question of DOC's asserted authority to review the legality of sentences imposed by the courts and alter them as it deems fit.

The sentence of which DOC disapproves is the sole authority for Mr. Pearson's incarceration. By refusing to execute the sentence exactly as imposed by the sentencing court, DOC has allegedly transformed what was effectively a five-year term of incarceration into a term of incarceration more than twice as long.

767 So.2d 1238
Under article I, section 9 of the Florida Constitution, once service of a sentence has begun, the state cannot alter it unilaterally to a prisoner's detriment. See Troupe v. Rowe, 283 So.2d 857, 860 (Fla. 1973). The state's limited statutory authority to appeal sentences is exercised by the office that prosecutes the convict who is sentenced. See §§ 924.07, 924.071, Fla. Stat. (1997); see also Fla. R.App. P. 9.140. DOC cannot rescind the state attorney's office's decision not to appeal by stating at this juncture objections to a sentence which was not appealed during the time allowed. DOC is not authorized to appeal the imposition of a sentence

Here the office that prosecuted Mr. Pearson is alleged to have entered into an agreement with him as to sentence, which the sentencing judge effectuated. If these allegations are true, the state presumably took no appeal because it recognized it was bound by a contract on which it had no intention to renege. Cf. Taylor v. State, 710 So.2d 636, 637 (Fla. 3d DCA 1998); Knight v. State, 611 So.2d 602, 603 (Fla. 2d DCA 1993). DOC cannot undo a bargain the state attorney's office has struck.

At issue is the separation of powers between the judicial and executive branches. See, e.g., Wilson v. State, 603 So.2d 93, 94 (Fla. 5th DCA 1992). There, when resentenced in the wake of a violation of community control, Wilson did not receive full credit for jail time he had previously served. He filed a motion under Florida Rule of Criminal Procedure 3.850 seeking jail credit. On appeal from denial of the motion, the Fifth District said:

[DOC] found the error and communicated assurances that Wilson would receive the appropriate credits. Nevertheless, Wilson is entitled to a judicial award of proper jail time credit. § 921.161(1), Fla. Stat. (1991).... [T]he award of the credit is a judicial task to be accomplished at sentencing rather than an administrative function to be accomplished post-sentencing. [DOC] cannot correct an illegal sentence or
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18 practice notes
  • Andrews v. Florida Parole Com'n, No. 1D98-1931.
    • United States
    • Court of Appeal of Florida (US)
    • October 18, 2000
    ...a sentence of imprisonment, nor shall it impose any other penalty except as provided by law." (emphasis supplied)). Pearson v. Moore, 767 So.2d 1235, 1238-39 (Fla. 1st DCA 2000). "As part of the executive branch, DOC lacks the power to adjudicate the legality of a sentence or to add or dele......
  • Grant v. Powell, Case No. 5:19-cv-45-TKW/MJF
    • United States
    • U.S. District Court — Northern District of Florida
    • December 17, 2019
    ...of powers, "lacks the power to adjudicate the legality of the sentence or to add or delete sentencing conditions." Pearson v. Moore, 767 So. 2d 1235, 1239 (Fla. 1st DCA 2000), approved and remanded, 789 So. 2d 316 (Fla. 2001) (citing Art. II, § 3, Fla. Const.; Slay v. Singletary, 676 So. 2d......
  • Santana v. Henry, No. 1D08-3852.
    • United States
    • Court of Appeal of Florida (US)
    • May 29, 2009
    ...upon expiration of their sentences. Sentencing is a power, obligation, and prerogative of the courts, not the DOC. See Pearson v. Moore, 767 So.2d 1235, 1239 (Fla. 1st DCA 2000), approved sub nom. Moore v. Pearson, 789 So.2d 316 In State, Department of Environmental Regulation v. Falls Chas......
  • Canete v. Florida Dept. of Corrections, No. 1D07-2505.
    • United States
    • Court of Appeal of Florida (US)
    • October 26, 2007
    ...unambiguous concerning the award of jail credit, DOC's ministerial duty is to implement those sentences as written. See Pearson v. Moore, 767 So.2d 1235 (Fla. 1st DCA 2000), approved, 789 So.2d 316 (Fla.2001). In the absence of a facially valid order of the sentencing court modifying the te......
  • Request a trial to view additional results
18 cases
  • Andrews v. Florida Parole Com'n, No. 1D98-1931.
    • United States
    • Court of Appeal of Florida (US)
    • October 18, 2000
    ...a sentence of imprisonment, nor shall it impose any other penalty except as provided by law." (emphasis supplied)). Pearson v. Moore, 767 So.2d 1235, 1238-39 (Fla. 1st DCA 2000). "As part of the executive branch, DOC lacks the power to adjudicate the legality of a sentence or to add or dele......
  • Grant v. Powell, Case No. 5:19-cv-45-TKW/MJF
    • United States
    • U.S. District Court — Northern District of Florida
    • December 17, 2019
    ...of powers, "lacks the power to adjudicate the legality of the sentence or to add or delete sentencing conditions." Pearson v. Moore, 767 So. 2d 1235, 1239 (Fla. 1st DCA 2000), approved and remanded, 789 So. 2d 316 (Fla. 2001) (citing Art. II, § 3, Fla. Const.; Slay v. Singletary, 676 So. 2d......
  • Santana v. Henry, No. 1D08-3852.
    • United States
    • Court of Appeal of Florida (US)
    • May 29, 2009
    ...upon expiration of their sentences. Sentencing is a power, obligation, and prerogative of the courts, not the DOC. See Pearson v. Moore, 767 So.2d 1235, 1239 (Fla. 1st DCA 2000), approved sub nom. Moore v. Pearson, 789 So.2d 316 In State, Department of Environmental Regulation v. Falls Chas......
  • Canete v. Florida Dept. of Corrections, No. 1D07-2505.
    • United States
    • Court of Appeal of Florida (US)
    • October 26, 2007
    ...unambiguous concerning the award of jail credit, DOC's ministerial duty is to implement those sentences as written. See Pearson v. Moore, 767 So.2d 1235 (Fla. 1st DCA 2000), approved, 789 So.2d 316 (Fla.2001). In the absence of a facially valid order of the sentencing court modifying the te......
  • Request a trial to view additional results

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