Petition for Writ of Habeas Corpus to Review Department of Corrections: CRIMINAL LAW – Sentencing – The Department of Corrections correctly calculated Petitioner’s sentence.  Petition denied.  Andrew v. Florida Department of Corrections, No. 11-CA-005703-WS (Fla. 6th Cir. App. Ct. July 19, 2012).

 

 

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING AND, IF FILED, DETERMINED

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA, IN AND FOR PASCO COUNTY

APPELLATE DIVISION

 

ROBERT P. ANDREW,     

                        Petitioner,

 

v.                                                                     UCN:              512011CA005703WS

Case No:       2011-CA-005703-WS

 

FLORIDA DEPARTMENT OF

CORRECTIONS, ET AL.,                                     

                        Respondents.                                                        

____________________________/

 

Petition for Writ of Habeas Corpus

 

Robert P. Andrew,

Petitioner

 

Michael T. Kennett, A.G.C.

for Respondent

 

 

 

ORDER AND OPINION

 

            Petitioner seeks his immediate release in his Petition for Writ of Habeas Corpus.  Petitioner argues that the Department of Corrections misapplied certain credits available to him in that the Department of Corrections only applied a one-third reduction to a portion of, rather than the entirety of, the sentence imposed in one of his cases.  This court finds that the Department of Corrections correctly calculated Petitioner’s sentence.  Petitioner’s Petition for Writ of Habeas Corpus shall be denied as set forth below.   

 

FACTUAL BACKGROUND

            Petitioner is currently incarcerated with an approximate release date of May 6, 2013 and seeks his immediate release based upon his calculation of his sentence via the instant Petition for Writ of Habeas Corpus.    

On August 19, 1988, Petitioner was charged in Broward County with Count (1) burglary of a dwelling and Count (2) grand theft in case number 88-CF-16235.  Petitioner pled guilty to both counts on November 17, 1988.  As to Count (1), Petitioner was sentenced as a youthful offender to 18 months followed by one year probation.  As to Count (2), Petitioner was also sentenced as a youthful offender to 18 months followed by one year probation, concurrent to County (1).  The Seventeenth Circuit awarded 79 days of jail credit on both counts. 

Petitioner was resentenced on December 12, 1989 after his probation was revoked.  Petitioner was sentenced to 6 years imprisonment as to Count (1).  As to Count (2), Petitioner was sentenced to 5 years imprisonment to run concurrent with Count (1).  Petitioner was awarded 18 months and 133 days jail credit.

On August 21, 1989, Petitioner was charged with Count (1) burglary of a dwelling and Count (2) resisting an officer without violence in case number 89-16516-CFA.  As to Count (1), Petitioner was sentenced to 8 years imprisonment followed by 2 years of probation to run concurrent with the sentence imposed in case number 88-CF-16235.  Petitioner was awarded 133 days jail credit.  Petitioner was resentenced on July 14, 2010 after his sentence was revoked.  As to Count (1), Petitioner was sentenced to 12 years imprisonment with 203 days of jail credit.  The Seventeenth Circuit ordered that Petitioner “be allowed credit for all time previously served on this count in the Department of Corrections prior to re-sentencing.” 

On October 11, 1989, Petitioner was charged with armed robbery in case number 89-CF-21231.  After being found guilty, on January 16, 1991, Petitioner was sentenced to 22 years imprisonment with a three year minimum mandatory pursuant to Florida Statute 775.087(2).  The sentence was to run concurrently with any active sentence being served.  Petitioner was awarded 532 days of jail credit.  On November 6, 1991, the Fourth District reversed and remanded case number 89-2123CF for a new trial.  Then, on February 12, 1992 (pro tunc to November 26, 1991), the Seventeenth Circuit issued an order vacating the sentence and setting aside the final judgment.  Petitioner was then adjudicated guilty of armed robbery.  On August 12, 1992, Petitioner was sentenced to 22 years imprisonment with a three-year minimum mandatory to run consecutively to “any active sentence being served.”  Petitioner was awarded 1078 days of jail credit.

On January 22, 2009, in what would become case number 2009-CF-000166-A-Z, Petitioner was charged with (1) burglary of a dwelling while armed, (2) grand theft from a dwelling, and (3) possession of burglary tools.  Petitioner was adjudicated guilty of Count (2) grand theft of a dwelling, on April 22, 2010.  Petitioner was sentenced to 30 months imprisonment and awarded 473 days of jail credit. 

Petitioner filed the instant Petition for Writ of Habeas Corpus, on November 28, 2011, challenging the Department of Correction’s calculation of gain time to the sentence imposed in case number 89-1651CFA and seeking his immediate release.                                 

 

                    

LAW AND ANALYSIS

Petitioner challenges the Department of Corrections’ application of gain time to his sentence in case number 89-16516CFA.  In this case, Petitioner was charged with violating his probation and resentenced to twelve years with 203 days of jail credit for the 8 years previously served in prison.  Petitioner seeks a writ of habeas corpus, compelling the Department of Corrections to recalculate the sentence to reflect one-third off of the entire twelve year period pursuant to Florida Statute 944.275(3)(b) with credit for eight years previously served and 203 days jail credit.  Petitioner’s calculation would result in his immediate release. 

Petitioner erroneously seeks gain time, which he lost, to be applied to the original 8 year sentence.  Since Petitioner received a sentence in case number 89-16516CFA for offenses committed prior to January 1, 1994, Petitioner can claim an entitlement to basic gain-time under Section 944.275(4)(a) and earn a maximum of 20 days of monthly, incentive gain time per month.  The 85% Rule does not apply to the sentence imposed in case number 89-16516CFA. 

Petitioner claims an entitlement to immediate release by arguing that the Department of Corrections misapplied certain credits available to him.  Specifically, Petitioner argues that the Department of Corrections only applied a one-third reduction to a portion of (rather than the entirety of) the sentence imposed in case number 89-16516CFA.  Presumably, Petitioner’s claim to “1/3 off” refers to the statutory grant of basic gain time at a rate of ten days per month pursuant to Florida Statute 944.275(4)(a).  In raising this claim, Petitioner essentially argues that the Department of Corrections failed to apply basic gain time to the eight-year sentence originally imposed December 12, 1989 in case number 89-16516CFA.  According to Petitioner, the Department of Corrections must apply basic gain-time to the entirety of the twelve-year sentence as a result of the probation revocation on July 14, 2010.  In other words, Petitioner claims a present entitlement to basic gain-time, not only for the additional four years imposed on July 14, 2010, but also for the original eight years imposed on December 12, 1989.  Put simply, Petitioner seeks a double award of basic gain-time for the original eight-year portion of his current, twelve year sentence.  Petitioner’s claim to a present award of basic gain-time for the entirety of his twelve year sentence fails for one simple reason: the Department of Corrections previously applied basic gain-time to the eight year sentence originally imposed in case number 89-16516CFA.  Consequently, Petitioner cannot receive a double award.

Petitioner earned and then subsequently lost almost all of the basic gain-time applied to the original eight-year sentence in case number 89-16516CFA.  Altogether, Petitioner forfeited 2,590 days of gain-time as applied to consecutive sentences in case numbers 89-16516 and 89-21231.  Of the 2,590 days, Petitioner forfeited 1,765 days with regard to case number 89-16516.  The Department of Corrections forfeited those days because Petitioner committed a slew of disciplinary infractions.  Petitioner had 960 days of basic gain-time and 964 days of additional gain-time applied to the eight-year term; however, he forfeited 1,765 days of gain-time due to disciplinary action, leaving only 159 days of gain-time.  Also, the Department of Corrections did not forfeit any gain-time as a result of Petitioner’s probation revocation.  As such, the Department of Corrections correctly calculated Petitioner’s sentence in case number 89-16516CFA.  Petitioner’s Petition for Writ of Habeas Corpus should be denied.  It is therefore,

 

            ORDERED that Petitioner’s Petition for Habeas Corpus is hereby DENIED.

 

DONE AND ORDERED in Chambers, at New Port Richey, Pasco County, Florida this 19th day of July 2012.

 

Original order entered on July 19, 2012 by Circuit Judges W. Lowell Bray, Jr., Michael F. Andrews, and Daniel D. Diskey.

 

 

 

 

 

 

 

 

 

 

Copies to:

Robert P. Andrew, Pro Se

Michael T. Kennett, A.G.C.