Opinion
Nos. 4D20-1500 4D20-1693
06-15-2022
Eric Lashawn WILEY, Appellant, v. STATE of Florida, Appellee.
Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant Public Defender, West Palm Beach, for appellant. Ashley Moody, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant Public Defender, West Palm Beach, for appellant.
Ashley Moody, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
Conner, J. Appellant was convicted of third-degree murder. He raises four arguments on appeal regarding his sentence. We find merit in Appellant's argument that the trial court erred in calculating credit for time served. We reverse and remand for the trial court to enter a sentence granting Appellant additional credit for time served in jail pending his various resentencings in this case. We affirm as to Appellant's remaining arguments without discussion.
Background
Appellant was originally sentenced on July 13, 2009, and has since been resentenced multiple times. Appellant's operative sentence, as modified in 2021, reflects Appellant's life sentence under section 775.087, Florida Statutes (2021), with credit for 549 days’ time served as of his original sentencing date "[p]lus day for day D.O.C. credit earned" since the date of his original sentencing.
During the pendency of this appeal, Appellant moved to correct his sentence under Florida Rule of Criminal Procedure 3.800(b) regarding his credit for time served. He argued that the trial court must give credit for time spent in the county jail before Appellant was originally sentenced and credit for county jail time served awaiting any resentencing. Appellant's motion explained that in his original sentence, he was initially awarded credit for 549 days’ county jail time served. However, Appellant argued that prior to his first resentencing, he was returned to the county jail on July 19, 2011, to await the first resentencing, which occurred in November 2011. Appellant argued that he was not given credit for this county jail time served for the initial resentencing. Appellant was again resentenced on June 29, 2020, wherein he was credited with 320 days’ county jail time served awaiting that 2020 resentencing, but was not given credit for the original 549 days’ time served before the original sentence or for the time served in jail awaiting the 2011 resentencing. In entering the operative modified sentence in 2021, for which Appellant was apparently in jail for just one day awaiting that resentencing, the trial court only awarded Appellant the 549 days’ credit for time served prior to his original sentence "[p]lus day for day D.O.C. credit earned" since that original sentence.
However, Appellant maintained the trial court must give jail credit for both the jail time served before the original sentence and also for the jail time served awaiting any resentencing. As such, he requested that the trial court correct his sentence to provide for credit for all time served in jail while awaiting sentencing and resentencing, including 549 days of time served as of the 2009 initial sentencing, at least 106 days in jail custody while awaiting the 2011 resentencing, 320 days in jail custody credited at the 2020 resentencing, and one day in jail custody while awaiting the 2021 resentencing.
The trial court's written order purportedly granting Appellant's motion stated that the court was granting Appellant's motion "to avoid a continued unsupported argument that some detriment regarding credit [for] time served was imposed upon" Appellant, but also stated that "[t]he [j]udgment and [s]entence is correct and will not be modified." The trial court reasoned that when being transported to a county jail for resentencing, Appellant is still in the custody of the Department of Corrections ("the Department") and receiving day for day credit, such that the Department includes the time when Appellant is in county jail awaiting resentencing. The trial court stated that the calculation of jail credit was not being delegated to the Department, except for the portion after the original sentencing, "at the time [the Department] took control of [Appellant] - which they do every day." The trial court then ordered the Department as follows:
The Florida Department of Corrections is ordered to modify, if necessary, their records to reflect that as of July 22, 2021 the [Appellant] has served a total of 4,941 days in custody, including the 549 days as of July 13, 2009 and the actual number of days since that date, which includes the time served within the Department of Corrections. This is the total and maximum number of day for day credit which [Appellant] is entitled to through July 22, 2021.
(emphasis omitted).
After rendition of the order "granting" Appellant's motion, Appellant gave notice of appeal.
Appellate Analysis
"The standard of review for an issue involving credit for time served is de novo." Brown v. State , 176 So. 3d 1016, 1017 (Fla. 5th DCA 2015) (citing Moore v. State , 882 So. 2d 977, 980 (Fla. 2004) ).
On appeal, Appellant maintains the trial court was required to award him credit for all time spent in jail prior to sentencing and resentencing.
Section 921.161, Florida Statutes (2021), provides:
(1) A sentence of imprisonment shall not begin to run before the date it is imposed, but the court imposing a sentence shall allow a defendant credit for all of the time she or he spent in the county jail before sentence. The credit must be for a specified period of time and shall be provided for in the sentence.
(2) In addition to other credits, a person sentenced to imprisonment in custody of the Department of Corrections shall receive credit on her or his sentence for all time spent between sentencing and being placed in custody of the department.
§ 921.161, Fla. Stat. (emphasis added).
In Kitchen v. State , 20 So. 3d 975 (Fla. 4th DCA 2009), we explained that this "statute requires the trial court to determine and give credit for all time spent in county jail prior to sentencing and for the Department to calculate the time after sentencing, including time in the county jail after sentencing." Id. at 976 (emphasis added). There, the trial court, upon resentencing the defendant, awarded him credit for 348 days’ time served prior to the original sentencing plus "ALL DOC CREDIT". Id. The defendant appealed the denial of his motion to correct sentencing error, contending he was entitled to "additional jail time credit for time spent in the county jail pending resentencing in his case." Id. The state conceded that "a prisoner is entitled to credit for jail time spent prior to resentencing" and we explained:
In accordance with the statute, the trial court must specifically state that time in the sentence . The trial court's mere reference to ALL DOC CREDIT does not include the time spent in county jail prior to resentencing . Only that portion of jail time spent between the resentencing and transfer of custody to the DOC is part of the credit DOC must allow.
Id. at 976-77 (emphasis added). As such, we directed the trial court on remand to grant the defendant "additional jail time credit for the time spent in county jail before (but not after) his resentencing." Id. at 977.
Like the award of "ALL DOC CREDIT" in Kitchen , the trial court's operative sentence in this case only gave Appellant credit for time served prior to his original sentence plus any day for day DOC credit earned since that date. Appellant's written sentence did not award him credit for jail time spent in county jail prior to each resentencing, as outlined in his motion. Section 921.161 ’s plain wording, as explained in Kitchen , demonstrates the error of the trial court's reasoning that "the Department of Corrections does include the time when [Appellant] is in a county jail before resentencing." Rather, the trial court must specify the credit in the written sentence, and a reference to the Department credit is insufficient because that "does not include the time spent in county jail prior to resentencing." Kitchen , 20 So. 3d at 976-77 (emphasis added). Pursuant to section 921.161(2), the only portion that the Department must allow is the jail time spent after resentencing before the transfer of custody back to the Department. While the trial court's order on Appellant's motion appears to direct the Department to reflect the actual number of days which Appellant has served in custody, the order does not comply with section 921.161(1) ’s requirement that "the credit must be for a specified period of time and shall be provided for in the sentence ." (emphasis added).
In sum, we affirm the trial court's rulings as to all issues which Appellant raises on appeal except the credit for county jail time served. As to the jail credit, we reverse and remand for the trial court to determine the additional jail time credit for the time spent in county jail before Appellant's resentencings and to enter an appropriate written sentence reflecting the credit.
Affirmed in part, reversed in part, and remanded.
Forst and Artau, JJ., concur.