Smith v. State

Aug 23, 1995
95-2217
Reporters:
,
Before:
Stevenson, Dell, Klein

STEVENSON, Judge.

In this appeal, pro se petitioner, Todd Smith, challenges the lower court‘s denial of his Rule 3.800 motion to correct illegal sentence, arguing that the trial court failed to award him credit for incentive gain time after revoking his probation. Because we find that the trial court properly awarded the gain time which petitioner seeks, we affirm.

Upon violation of the probationary portion of a split sentence, the trial court sentenced Smith to twelve years incarceration and ordered that Smith be given “credit for all time previously served” in the Department of Corrections prior to resentencing. We interpret the trial court‘s order as correctly allowing Smith credit for time actually served as well as earned gain time because the offense occurred prior to October 1, 1989. See State v. Green, 547 So.2d 925 (Fla. 1989); Harrington v. State, 609 So.2d 712 (Fla. 4th DCA 1992); § 948.06(6), Fla. Stat. (1989); Ch. 89-531, Laws of Florida. It is not the trial court‘s province to calculate the amount of incentive gain time due to a prisoner; that function is to be performed by the Department of Corrections. Walker v. State, 619 So.2d 518 (Fla. 1st DCA 1993).

DELL and KLEIN, JJ., concur.