Shelby v. State
| Citation | 554 So.2d 24 |
| Decision Date | 20 December 1989 |
| Docket Number | No. 89-01193,89-01193 |
| Parties | 15 Fla. L. Weekly D3 James D. SHELBY, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, and T. Orin Lee, Asst. Public Defender, Bartow, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Brenda S. Taylor, Asst. Atty. Gen., Tampa, for appellee.
Following the reversal of appellant's convictions, see Shelby v. State, 541 So.2d 1219 (Fla. 2d DCA 1989), and upon remand for retrial, appellant pleaded no contest to certain charges and was sentenced pursuant to a negotiated plea. Appellant, relying on State v. Green, 547 So.2d 925 (Fla.1989), contends that the trial court erred in deciding that it did not have the authority to rule on whether he would receive credit for gain time previously earned while serving the sentences that were subsequently reversed. The state contends that awarding gain time is a matter that should be left to the Department of Corrections, not to the courts.
In Green, the supreme court held that trial courts have no authority to deny credit for gain time earned while previously incarcerated against a sentence imposed after revocation of probation, stating:
Further, as the district court noted, "[t]he awarding of statutory gain time is solely a function of the [department], and the trial court is without authority to prevent such award or order its waiver." Green [v. State ], 539 So.2d at 485 [Fla. 1st DCA 1988]. The statute places in the hands of the department the ability to award, forfeit, or restore gain time. There is no statutory authority for the court to initiate the forfeiture of gain time by denying credit for accrued gain time at resentencing.
In accordance with Green, appellant should be given credit for gain time earned while serving his previously-imposed sentence. The trial court's action is not inconsistent with Green, and indeed, is in compliance with that decision. The trial court neither granted nor denied credit for gain time earned. It determined correctly that it did not have the authority to rule on gain time. That function is with the Department of Corrections, which we are confident will award appellant the gain time he has earned.
Affirmed.
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Desue v. State
...calculation. See Wilson v. State, 603 So.2d 93 (Fla. 5th DCA 1992); Rice v. State, 563 So.2d 210 (Fla. 5th DCA 1990); Shelby v. State, 554 So.2d 24 (Fla. 2d DCA 1989); Hampton v. State, 421 So.2d 775 (Fla. 5th DCA In regard to Desue's final argument, the state concedes that the trial court ......
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Walker v. State, 92-3838
...569 So.2d 882 (Fla. 3d DCA 1990). The award of gain time is solely a function of the Department of Corrections. Green; Shelby v. State, 554 So.2d 24 (Fla. 2d DCA 1989). In the Green line of cases, the defendants had completed the incarcerative portions of split sentences, then violated the ......
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Rice v. State, 89-2001
...appropriate amount of earned gain time to be without merit. That is the function of the Department of Corrections. See Shelby v. State, 554 So.2d 24 (Fla. 2d DCA 1989). Although we affirm the trial judge, it is without prejudice to appellant to file a 3.850 motion alleging sufficient facts ......