Smith v. State, No. 95-3312

CourtCourt of Appeal of Florida (US)
Writing for the CourtSTEVENSON; PER CURIAM
Citation682 So.2d 147
Parties21 Fla. L. Weekly D2338, 21 Fla. L. Weekly D851 Tyler SMITH, Appellant, v. STATE of Florida, Appellee.
Decision Date10 April 1996
Docket NumberNo. 95-3312

Page 147

682 So.2d 147
21 Fla. L. Weekly D2338, 21 Fla. L. Weekly D851
Tyler SMITH, Appellant,
v.
STATE of Florida, Appellee.
No. 95-3312.
District Court of Appeal of Florida,
Fourth District.
April 10, 1996.
Rehearing Denied Oct. 30, 1996.

Page 148

Appeal of order denying rule 3.800(a) motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Robert W. Tyson, Jr., Judge. L.T. Case No. 88-17403CF10A.

Tyler Smith, Madison, pro se.

No appearance required for appellee.

STEVENSON, J.

Appellant was re-sentenced to prison after he violated the probationary portion of a split sentence. By letter, the Department of Corrections (D.O.C.) informed appellant that he would be given credit for the actual time he spent in prison, but that he would not be credited with unforfeited gain time because it was not expressly provided for in the sentencing order. Appellant filed this rule 3.800 motion with the trial court alleging that he is entitled to credit for his earned gain time in addition to the actual time that he served in prison. The trial court denied appellant's motion on the basis that it had no jurisdiction over the D.O.C. located in the county where appellant was incarcerated. We affirm the trial court's ruling without prejudice for appellant to file a petition for writ of mandamus in the appropriate court requesting that the D.O.C. be ordered to include earned gain time in calculating his release date.

This court has held that sentencing orders which award credit for prison time served for offenses committed prior to October 1, 1989, necessarily encompass earned gain time because once the trial court orders credit for prison time served, the defendant becomes entitled to an allowance for earned gain time by operation of law. See Smith v. State, 659 So.2d 1222 (Fla. 4th DCA 1995). 1 In the instant case, appellant committed the original crimes prior to October 1, 1989. The trial court's order provided that appellant was entitled to credit for all time previously served in the D.O.C. prior to resentencing. Accordingly, no further directive was required to enable the D.O.C. to compute a

Page 149

release date which recognized all of appellant's earned gain time. 2

Nevertheless, we affirm the trial court's order denying appellant's 3.800 motion because the sentence is not "illegal." However, we affirm without prejudice to appellant exercising his right to file a petition for writ of mandamus in the trial court if he is...

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7 practice notes
  • Department of Corrections, State of Fla. v. Mattress, No. 96-1205
    • United States
    • Court of Appeal of Florida (US)
    • January 10, 1997
    ...filing a petition for writ of mandamus naming DOC as the respondent. See Adams v. Wainwright, 275 So.2d 235 (Fla.1973); Smith v. State, 682 So.2d 147 (Fla. 4th DCA 1996); Posey v. Kaplan, 660 So.2d 781 (Fla. 4th DCA 1995). The reason for this is that an award of credit after sentencing is a......
  • Steele v. State, No. 99-0300.
    • United States
    • Court of Appeal of Florida (US)
    • May 26, 1999
    ...for a writ of mandamus after exhausting his administrative remedies with DOC, assuming he has not already done so. See Smith v. State, 682 So.2d 147, 149 (Fla. 4th DCA), rev. dismissed, 689 So.2d 1071 (Fla.1997); King v. State, 665 So.2d 377 (Fla. 4th DCA 1996). If, upon the filing of a man......
  • Miller v. State, No. 5D03-3440.
    • United States
    • Court of Appeal of Florida (US)
    • September 17, 2004
    ...a court orders credit for time served, the defendant becomes entitled to an allowance of gain time by operation of law. Smith v. State, 682 So.2d 147, 148 (Fla. 4th DCA 1996). § 944.275(3)(b). But the award of gain time is entirely a matter for the determination of the Department of In this......
  • Bedford v. State, No. 4D00-3786.
    • United States
    • Court of Appeal of Florida (US)
    • December 27, 2000
    ...filed a mandamus petition to have the Department honor the amount of jail credit awarded in each of his sentences. See Smith v. State, 682 So.2d 147, 149 (Fla. 4th DCA 1996)("A petition for mandamus in the trial court is the appropriate remedy to permit the trial court to order the Departme......
  • Request a trial to view additional results
7 cases
  • Department of Corrections, State of Fla. v. Mattress, No. 96-1205
    • United States
    • Court of Appeal of Florida (US)
    • January 10, 1997
    ...filing a petition for writ of mandamus naming DOC as the respondent. See Adams v. Wainwright, 275 So.2d 235 (Fla.1973); Smith v. State, 682 So.2d 147 (Fla. 4th DCA 1996); Posey v. Kaplan, 660 So.2d 781 (Fla. 4th DCA 1995). The reason for this is that an award of credit after sentencing is a......
  • Steele v. State, No. 99-0300.
    • United States
    • Court of Appeal of Florida (US)
    • May 26, 1999
    ...for a writ of mandamus after exhausting his administrative remedies with DOC, assuming he has not already done so. See Smith v. State, 682 So.2d 147, 149 (Fla. 4th DCA), rev. dismissed, 689 So.2d 1071 (Fla.1997); King v. State, 665 So.2d 377 (Fla. 4th DCA 1996). If, upon the filing of a man......
  • Miller v. State, No. 5D03-3440.
    • United States
    • Court of Appeal of Florida (US)
    • September 17, 2004
    ...a court orders credit for time served, the defendant becomes entitled to an allowance of gain time by operation of law. Smith v. State, 682 So.2d 147, 148 (Fla. 4th DCA 1996). § 944.275(3)(b). But the award of gain time is entirely a matter for the determination of the Department of In this......
  • Bedford v. State, No. 4D00-3786.
    • United States
    • Court of Appeal of Florida (US)
    • December 27, 2000
    ...filed a mandamus petition to have the Department honor the amount of jail credit awarded in each of his sentences. See Smith v. State, 682 So.2d 147, 149 (Fla. 4th DCA 1996)("A petition for mandamus in the trial court is the appropriate remedy to permit the trial court to order the Departme......
  • Request a trial to view additional results

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