State v. Green, No. 73505

CourtUnited States State Supreme Court of Florida
Writing for the CourtEHRLICH; GRIMES, J., dissents with an opinion, in which SHAW; GRIMES; SHAW
Citation14 Fla. L. Weekly 362,547 So.2d 925
Docket NumberNo. 73505
Decision Date20 July 1989
Parties14 Fla. L. Weekly 362 STATE of Florida, Petitioner, v. Milton GREEN, Respondent.

Page 925

547 So.2d 925
14 Fla. L. Weekly 362
STATE of Florida, Petitioner,
v.
Milton GREEN, Respondent.
No. 73505.
Supreme Court of Florida.
July 20, 1989.
Rehearing Denied Sept. 15, 1989.

Page 926

Robert A. Butterworth, Atty. Gen., Richard E. Doran, Director, Crim. Div., and Gypsy Bailey, Asst. Atty. Gen., Tallahassee, for petitioner.

Michael E. Allen, Public Defender, and Kathleen Stover, Asst. Public Defender, Tallahassee, for respondent.

EHRLICH, Chief Justice.

We have for review Green v. State, 539 So.2d 484 (Fla. 1st DCA 1988) (on rehearing), because of direct conflict with Butler v. State, 530 So.2d 324 (Fla. 5th DCA), review denied, 539 So.2d 475 (Fla.1988). We have jurisdiction pursuant to article V, section 3(b)(3), of the Florida Constitution, and approve the decision of the First District Court of Appeal.

Green pled nolo contendere to two counts of attempted sexual battery and was sentenced to four and one-half years in prison, to be followed by three years' probation. He received 287 days' credit for time served in jail before sentencing. While in prison, Green accumulated gain-time and was released after serving only 518 days of his four and one-half year sentence. His probation was later revoked due to violation and he was sentenced to seven years in prison. At resentencing, Green was given 805 days' credit for time served (518 days in prison plus 287 days served before original sentencing), but was not given credit for gain-time earned while previously incarcerated. Green appealed to the First District Court of Appeal, which reversed, holding that Green was entitled to credit earned gain-time against the new sentence imposed for probation violation. We agree.

Section 944.275(1), Florida Statutes (1987), authorizes the Department of Corrections (department) to grant "gain-time in order to encourage satisfactory prisoner behavior, to provide incentive for prisoners to participate in productive activities, and to reward prisoners who perform outstanding deeds or services." A prisoner who is released early because of gain-time is considered to have completed his sentence in full. See § 944.291, Fla.Stat. (1987). Receipt of gain-time is dependent on a prisoner's behavior while in prison, not on satisfactory behavior once the prisoner has been released from incarceration. Therefore, accrued gain-time is the functional equivalent of time spent in prison.

Green earned gain-time due to his satisfactory behavior while in prison. Because of that accumulated gain-time, Green was released early, and the incarceration part of his split sentence was finished, although he was still required to serve the probation part of his split sentence. Upon resentencing after violation of the probation, Green was clearly entitled to credit for the time served on the original sentence. State v. Holmes, 360 So.2d 380 (Fla.1978); see also North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). The trial court only counted the time Green actually spent in prison as time served. This denial of credit for gain-time already accrued was essentially a retroactive forfeiture of gain-time.

Section 944.28, Florida Statutes (1987), governs the forfeiture of gain-time. This section lists circumstances that justify forfeiture of gain-time, including a conviction for escape or the revocation of parole....

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197 practice notes
  • King v. State, No. 93-1261
    • United States
    • Court of Appeal of Florida (US)
    • December 15, 1994
    ...the term of confinement cannot exceed the maximum sentence authorized by section 775.082, Florida Statutes, however. State v. Green, 547 So.2d 925 (Fla.1989), superseded by statute as stated in Bradley v. State, 631 So.2d 1096...
  • Childers v. State, No. 1D03-2154.
    • United States
    • Court of Appeal of Florida (US)
    • June 28, 2006
    ...are read to suggest that a sentencing court must do more in order to effect a full award of Green credit[, referring to State v. Green, 547 So.2d 925 (Fla.1989) ], we recede from those opinions."), approved by 688 So.2d 319 (Fla.1997); Jenkins v. State, Dep't of Health & Rehab. Servs., 618 ......
  • Childers v. State, No. 1D03-2154.
    • United States
    • Court of Appeal of Florida (US)
    • June 28, 2006
    ...are read to suggest that a sentencing court must do more in order to effect a full award of Green credit[, referring to State v. Green, 547 So.2d 925 (Fla.1989)], we recede from those opinions."), approved by 688 So.2d 319 (Fla.1997); Jenkins v. State, Dep't of Health & Rehab. Servs., 618 S......
  • Andrews v. Florida Parole Com'n, No. 1D98-1931.
    • United States
    • Court of Appeal of Florida (US)
    • October 18, 2000
    ...to gain-time, that remaining period of the sentence is extinguished." Heuring v. State, 559 So.2d 207, 208 (Fla.1990); State v. Green, 547 So.2d 925, 926 (Fla.1989) ("A prisoner who is released early because of gain-time is considered to have completed his sentence in full."); see generally......
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197 cases
  • King v. State, No. 93-1261
    • United States
    • Court of Appeal of Florida (US)
    • December 15, 1994
    ...the term of confinement cannot exceed the maximum sentence authorized by section 775.082, Florida Statutes, however. State v. Green, 547 So.2d 925 (Fla.1989), superseded by statute as stated in Bradley v. State, 631 So.2d 1096...
  • Childers v. State, No. 1D03-2154.
    • United States
    • Court of Appeal of Florida (US)
    • June 28, 2006
    ...are read to suggest that a sentencing court must do more in order to effect a full award of Green credit[, referring to State v. Green, 547 So.2d 925 (Fla.1989) ], we recede from those opinions."), approved by 688 So.2d 319 (Fla.1997); Jenkins v. State, Dep't of Health & Rehab. Servs., 618 ......
  • Childers v. State, No. 1D03-2154.
    • United States
    • Court of Appeal of Florida (US)
    • June 28, 2006
    ...are read to suggest that a sentencing court must do more in order to effect a full award of Green credit[, referring to State v. Green, 547 So.2d 925 (Fla.1989)], we recede from those opinions."), approved by 688 So.2d 319 (Fla.1997); Jenkins v. State, Dep't of Health & Rehab. Servs., 618 S......
  • Andrews v. Florida Parole Com'n, No. 1D98-1931.
    • United States
    • Court of Appeal of Florida (US)
    • October 18, 2000
    ...to gain-time, that remaining period of the sentence is extinguished." Heuring v. State, 559 So.2d 207, 208 (Fla.1990); State v. Green, 547 So.2d 925, 926 (Fla.1989) ("A prisoner who is released early because of gain-time is considered to have completed his sentence in full."); see generally......
  • Request a trial to view additional results

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