Slay v. SingletarySlay v. Singletary
PER CURIAM.
We grant appellee‘s motion for rehearing en banc, and upon consideration by the judges of the General Division in accordance with
Genorval Slay, a/k/a Alton M. Johnson, seeks review of an order denying his petition for writ of habeas corpus, in which he alleged that in calculating the length of what at the time was believed to be his controlling sentence, appellee failed to allow him credit for gain-time earned during the service of the incarcerative portion of his original split sentence, as required by State v. Green, 547 So.2d 925 (Fla.1989). Before the trial court and in its brief filed in this proceeding, appellee acknowledged that in accordance with Green, appellant is entitled to certain credit for gain-time earned during the service of his original sentenсe, and that the application of such credit would result in appellant‘s release from custody.1 Appellee arguеd, however, that the language utilized by the sentencing court in its written judgment and sentence was insufficient to effect an award of that сredit, and in accordance with Wilson v. State, 603 So.2d 93 (Fla. 5th DCA 1992), the Department of Corrections lacks authority to correct or modify an illegal sentence. Thus, while appellee conceded appellant‘s entitlement to credit and his consequent entitlement
However, after seeking rehearing of the panel‘s prior opinion reversing thе trial court‘s order and remanding with directions to grant the writ, appellee filed a pleading indicating, without meaningful explanatiоn, that contrary to all its prior representations, the granting of relief with respect to the claim raised by Slay would not entitle him to release, as he is presently serving a separate concurrent sentence with a tentative release date оf August 6, 1996. In view of this representation, we vacate the trial court‘s order denying the petition for writ of habeas corpus and remаnd for further proceedings consistent herewith.
We agree with the general proposition, as acknowledged in Wilson, that the Department of Corrections lacks the authority to correct an illеgal sentence or render the illegality harmless. Nonetheless, appellee‘s reliance on Wilson is misplaced in this case. Wilson involved a situation in which the trial court, in resentencing upon a violation of the community control portion of a split sentence, failed to award the defendant credit for the original period of incarceration. Thus, Wilson‘s sentence was flawed based upon the sentencing court‘s failure to fulfill its obligation to award him credit to which he was legally entitled. However, Wilson is factually distinguishable from this case simрly because the sentencing documents at issue here in fact properly award appellant all credit to which he was legally entitled, and are sufficient to impose a duty on the Department of Corrections to apply that credit.
In resentencing appellant upon violation of the probationary portion of his original split sentence, the sentencing cоurt placed a check mark by the standard provision, mandated by
Consistent with this conclusion, our sister court has specifically interpreted such a sentеncing provision as allowing the defendant credit for time actually served as well as earned gain-time to which an entitlement еxists under Green. Smith v. State, 659 So.2d 1222 (Fla. 4th DCA 1995).3 We now expressly align ourselves with the decision in Smith, and to the extent prior cases such as Allen v. State, 642 So.2d 607 (Fla. 1st DCA 1994) and Sapp v. State, 652 So.2d 1194 (Fla. 1st DCA 1995) are read to suggest that a sentencing court must do more in order to effect a full award of Green credit, we recede from those opinions. Although appellee suggests that this conclusion conflicts with the decisions in Byers v. State, 652 So.2d 1221 (Fla. 2d DCA 1995), Yourn v. State, 652 So.2d 1228 (Fla. 2d DCA 1995), and Bacon v. State, 647 So.2d 332 (Fla. 5th DCA 1994), we decline to so conclude, as none of those cases expressly appear to involve situations in which the sentencing court utilized the standard crеdit award language set forth in
WHEN A DEFENDANT IS RESENTENCED AFTER VIOLATING THE PROBATIONARY PORTION OF A SPLIT SENTENCE IMPOSED FOR A CRIME OCCURRING PRIOR TO OCTOBER 1, 1989, IS THE SENTENCING
COURT‘S AWARD OF “CREDIT FOR ALL TIME SERVED ON THIS COUNT IN THE DEPARTMENT OF CORRECTIONS PRIOR TO RESENTENCING” SUFFICIENT TO EFFECT THE AWARD OF CREDIT FOR TIME ACTUALLY SERVED AS WELL AS UNFORFEITED GAIN-TIME TO WHICH AN ENTITLEMENT EXISTS UNDER STATE v. GREEN, 547 So.2d 925 (Fla. 1989)?
In accordance herewith, we vacate the trial court‘s order denying the petition for writ of habeas corpus and remand for further proceedings. The trial court is directed to determine on remand whether the application of the Green credit to which Slay is entitled would consequently entitle him to immediate release, and if so, to grant the petitiоn and so order. If, as appellee now belatedly suggests, the application of Green credit to the sentence at issue here would not entitle him to immediate release, the trial court is directed to treat the petition as seeking mandamus relief аgainst the Department of Corrections and to conduct such further proceedings as are necessary. Cf., Grimes v. State, supra; Riddell v. State, 534 So.2d 907 (Fla. 1st DCA 1988).
ORDER VACATED AND CAUSE REMANDED WITH DIRECTIONS.
ERVIN, BOOTH, JOANOS, MINER, WOLF, WEBSTER, MICKLE, LAWRENCE, BENTON and VAN NORTWICK, JJ., concur.