Walker v. State, 92-3838
| Decision Date | 18 June 1993 |
| Docket Number | No. 92-3838,92-3838 |
| Citation | 619 So.2d 518 |
| Parties | 18 Fla. L. Week. D1457 Henry H. WALKER, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Nancy A. Daniels, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.
Robert A. Butterworth, Atty. Gen., and Richard Parker, Asst. Atty. Gen., Tallahassee, for appellee.
Henry H. Walker has appealed from his sentence imposed on remand in Walker v. State, 604 So.2d 913 (Fla. 1st DCA 1992). We affirm.
In March 1989, Walker pled guilty to two counts of lewd and lascivious acts on a child. He received concurrent terms of 15 years incarceration plus 5 years probation. Walker later moved to correct an illegal sentence, claiming that the total of the incarcerative and probationary terms of this split sentence exceeded the 15-year statutory maximum. The trial court granted the motion, and resentenced Walker to concurrent terms of 10 years incarceration plus 5 years probation, and 15 years incarceration. This court reversed and remanded for resentencing in that, as a result of the sentence, Walker would simultaneously be incarcerated and on probation.
On October 22, 1992, the trial court resentenced Walker to consecutive terms of 15 years incarceration, and 5 years probation. At sentencing, Walker sought an award of credit for time already served plus accumulated gain time. The court agreed that he was "entitled to gain time for any time served," and that it would be ordered. The written judgment reflected credit for jail time served prior to the original sentence, and for prison time already served, but did not mention gain time.
Walker argues that the court must award him credit for gain time accumulated during his still-ongoing incarceration. He relies on State v. Green, 547 So.2d 925 (Fla.1989), which held that, when a defendant is released early from the incarcerative portion of a split sentence, then violates the succeeding probation, he is entitled at sentencing to credit for the entire incarcerative period (actual time served plus gain time). Otherwise, the court effects a forfeiture of gain time, an executive function of the Department of Corrections. The state emphasizes Green 's holding that the award of gain time is a DOC function, but Walker counters that credit for previously-earned gain time has been denominated a judicial function, Cole v. State, 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,...
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...of Corrections pursuant to chapter 944, Florida Statutes. See State v. Green, 547 So.2d 925, 927 (Fla.1989); Walker v. State, 619 So.2d 518, 519 (Fla. 1st DCA 1993). Where a sentencing court attempts to either bar or grant gain time awards, those portions of the sentencing order have been s......
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