CURTIS LEE HARRISON, PETITIONER,
v.
LOUIE L. WAINWRIGHT, SECRETARY, DEPARTMENT OF CORRECTIONS, RESPONDENT
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The court held that a defendant must be given credit for all time spent in jail as a condition of probation before sentencing, even if probation is revoked.
Petitioner's probation was revoked and he was sentenced to state prison without credit for time already served in jail as a condition of that probatio…
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DAUK.SCH, Chief Justice.
Upon consideration of the Petition for Writ of Habeas Corpus and the response, it is the determination of this court that the petitioner is being held by the respondent illegally.
The petitioner was sentenced to serve a term in the state prison after his probation was revoked. The trial judge did not give the petitioner credit for time he had already served in jail as a condition of the probation which was revoked. This is error. Section 921.161(1), Florida Statutes, requires:
.. . the court imposing a sentence shall allow a defendant credit for all of the time 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.
(emphasis supplied).
This ease is like the case of Andrews v. State, 357 So. 2d 498 (Fla.1st DCA 1978), in that the trial judge first sentenced petitioner to one sentence and then when the error of that sentence was brought to his attention, by this court in this instance, he then resentenced the petitioner to a greater term and then gave him credit for the time served. It must be done correctly the first time. See also Meintzer v. State, 399 So. 2d 133 (Fla.5th DCA 1981).
Because petitioner has served time in excess of his legal sentence he is ordered immediately discharged from custody. Either party may file a timely petition for rehearing but the respondent shall immediately release the petitioner. WRIT GRANTED; PETITIONER RELEASED FROM CUSTODY.
SHARP and COWART, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Martin v. State, 525 So. 2d 901 (Fla. 5th DCA 1987)…r demanding that credit or right is sufficient. All references to particular court rule remedies and all restrictions and limitations on such rule remedies can be, and should be, disregarded as unnecessary and surplus-age. . Harrison v. Wainwright, 408 So. 2d 800 (Fla. 5th DCA), rev. denied, 419 So. 2d 1201 (Fla.1982); Dowda v. State, 417 So. 2d 1147 (Fla. 5th DCA 1982); Jablonskis v. State, 422 So. 2d 356 (Fla. 5th DCA 1982); Waite v. State, 423 So. 2d 529 (Fla. 5th DCA 1982); Delgado v. State, 423 So. 2d 6…
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Kirkman v. Louie L. Wainwright, 465 So. 2d 1262 (Fla. 5th DCA 1985)…t did not sentence Kirkman in the manner to achieve that goal. Meintzer v. State, 399 So. 2d 133 (Fla. 5th DCA 1981). Having sentenced him to four and one-half years, neither the trial court, nor we, can change that sentence. Harrison v. Wainwright, 408 So. 2d 800 (Fla. 5th DCA), rev. denied, 419 So. 2d 1201 (Fla.1982). It is clear that pursuant to section 921.161, Florida Statutes (1983), a criminal defendant being sentenced after the violation of his probation, is entitled to receive credit on that sentenc…
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Lenden Alvin Pendergrass v. State, 487 So. 2d 35 (Fla. 4th DCA 1986)…1981), appears to support the state’s position. Appellant calls attention, however, to an opinion of the Fifth District Court of Appeal and cases cited therein. See Kirkman v. Wainwright, 465 So. 2d 1262 (Fla. 5th DCA 1985); Harrison v. Wainwright, 408 So. 2d 800 (Fla. 5th DCA 1982), review denied, 419 So. 2d 1201 (Fla.1982); and Meintzer v. State, 399 So. 2d 133 (Fla. 5th DCA 1981). We are persuaded by the reasoning of the latter cases. Accordingly, we remand so that the trial court will correct the senten…
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- Meintzer v. State, 399 So. 2d 133 (Fla. 5th DCA 1981)