Posey v. Kaplan, 95-0565

• Citation: 660 So.2d 781
• Decision Date: 20 September 1995
• Docket Number: No. 95-0565,95-0565
• Parties: 20 Fla. L. Weekly D2160 Mark Alvin POSEY, Petitioner, v. The Honorable Stanton S. KAPLAN, Circuit Judge of the Seventeenth Judicial Circuit in and for Broward County, Florida, Respondent.
• Court: Court of Appeal of Florida (US)

Page 781

660 So.2d 781

20 Fla. L. Weekly D2160

Mark Alvin POSEY, Petitioner, v. The Honorable Stanton S. KAPLAN, Circuit Judge of the

Seventeenth Judicial Circuit in and for Broward

County, Florida, Respondent.

No. 95-0565.

District Court of Appeal of Florida,

Fourth District.

Sept. 20, 1995.

Mark Alvin Posey, Miami, pro se petitioner.

Robert A. Butterworth, Attorney General, Tallahassee, and John Tiedemann, Assistant Attorney General, West Palm Beach, for respondent.

PER CURIAM.

Petitioner, a prisoner proceeding pro se, seeks a writ of mandamus, requiring the trial court, inter alia, to correct his written sentence as to credit for time served prior to sentencing.

Petitioner asked the trial court either to compel the Department of Corrections to credit him with the time he was entitled to (seeking the equivalent of a writ of mandamus) or to correct his written sentence to conform to the oral pronouncements of the court at the time of his plea. His petition was dismissed on the ground that the trial court lacked jurisdiction to afford any relief, as Petitioner's sole remedy was to take administrative action.

We do not determine whether Petitioner will ultimately be entitled to any relief in the circuit court. However, we do recognize that the circuit court has jurisdiction to consider Petitioner's claim as to its sentence. Mandamus is the proper method to test a court's determination that it lacks jurisdiction over a matter and to compel that court to exercise jurisdiction, if it has wrongfully refused to do so. Pino v. District Court of Appeal, Third Dist., 604 So.2d 1232, 1233 (Fla.1992).

In November, 1994, Petitioner entered a guilty plea in four separate pending circuit court cases. He alleges that his plea agreement, accepted by the court, included a provision that he would receive credit for specific amounts of time served in each of the pending cases. Petitioner alleges that the trial court pronounced the correct credit as part of the oral sentences imposed but that he was subsequently informed by the Department of Corrections that he would receive no credit because the written sentencing orders did not "consolidate" the multiple credits into one document.

Respondent asserts that it is within the sole authority of the Department of Corrections to calculate and apply gain time credits, and that the circuit court lacks jurisdiction to interfere with this process. However, here, Petitioner is apparently seeking credit for only that amount of time that he earned before the sentence was imposed as expressly considered, calculated and awarded at sentencing. Respondent acknowledges that Petitioner's sentence included findings as to the specific number of days of credit to be awarded in each case against the sentences imposed.

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