ANTHONY M. KIRKMAN, PETITIONER,
v.
LOUIE L. WAINWRIGHT, SECRETARY, DEPARTMENT OF CORRECTIONS, RESPONDENT
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Kirkman petitioned for habeas corpus relief after being resentenced for probation violation to 4.5 years without receiving credit for 4 years of imprisonment served before his initial parole release. The court held that Florida law requires sentencing courts to credit all prior prison time, including pre-parole service, and since proper crediting would result in time already served exceeding the sentence imposed, Kirkman is entitled to immediate release.
Yes. Under Florida Statutes section 921.161, a defendant being sentenced after probation violation is entitled to credit for all prison or jail time previously served, including time preceding parole release. Since Kirkman's credited time exceeds 4.5 years, he is entitled to immediate release from custody.
[1] A defendant sentenced for a probation violation is entitled to credit for all prior prison or jail time served, including time served before release on probation.
[2] A court cannot retroactively change a sentence to achieve a desired outcome if the original sentence was not imposed in a manner to achieve that outcome.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“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 sentence for all prison or jail time served, including that which preceded his release on probation.”
Establishes the mandatory nature of crediting all prior prison time when sentencing for probation violation
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceKirkman was sentenced in 1975 to 30 years for robbery (10 years in prison, 20 years probation). He served approximately 4 years before being released …
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Departure Sentence cases and more on FLexlaw
SHARP, Judge.
Kirkman petitions this court for a writ of habeas corpus on the grounds that he is entitled to immediate release from the Department of Corrections. We agree and issue the writ.
Petitioner was sentenced to thirty years for a robbery conviction in 1975, ten years of which were to be served in prison and twenty years on probation. He served approximately four years, and then was released on parole.
In 1984, he was found guilty of violating his probation,1 and he was sentenced to a four and one-half year prison term. This was within the Sentencing Guidelines, Fla.R.Crim.P. 3.701, presumptive sentence range, according to his scoresheet,2 and the court at sentencing did not state it was “departing” from the Guidelines sentence. It also credited Kirkman with ninety days for the time served after his probation violation until time of sentencing. However, the court gave him no credit for the four years served prior to his release on parole.
Kirkman filed an appeal from the trial court’s denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850, to obtain credit for that prison term and this petition for writ of habeas corpus, on the grounds that had he properly been given credit for the prior prison time served, he was entitled to be immediately released.
The state argues that the trial court intended to sentence Kirkman to a term of years which would be sufficiently long to result in a four and one-half year term, after giving him credit for the prior time served in prison. This would have required the trial court to enter a “departure” sentence under the Guidelines, which it clearly could have done. Fla.R.Crim.P. 3.701(d)(11); Hendrix v. State, 455 So. 2d 449 (Fla. 5th DCA 1984) (departure based on prior record); Carter v. State, 452 So. 2d 953 (Fla. 5th DCA 1984) (violation of probation sufficient basis for departure).
However, although the trial court may have intended this result, it 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 sentence for all prison or jail time served, including that which preceded his release on probation. Harrison; Meintzer; State v. Jones, 327 So. 2d 18 (Fla.1976).
Since that credit for prison time in this case results in Kirkman having served at least three months longer than the four and one-half year Guideline sentence im posed, we order him 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.
COBB, C.J., and FRANK D. UP-CHURCH, Jr., J., concur. . The parties have not argued that the trial court improperly revoked petitioner’s probation (see Stafford v. State, 455 So. 2d 385 (Fla.1984); Thomas v. State, 434 So. 2d 20 (Fla. 2d DCA 1983)), and Kirkman did not appeal from that order. In any event, the ten year parole period has also virtually expired in this case, so that point would make no material difference.
. The presumptive range under the Guidelines was three and one-half to four and one-half years.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Martin v. State, 525 So. 2d 901 (Fla. 5th DCA 1987)…. 5th DCA 1984); Jensen v. State, 449 So. 2d 969 (Fla. 5th DCA 1984); Spurlock v. State, 449 So. 2d 973 (Fla. 5th [*903] DCA 1984), rev. denied, 466 So. 2d 212 (Fla.1985); Whitchard v. State, 459 So. 2d 439 (Fla. 3d DCA 1984); Kirkman v. Wainwright, 465 So. 2d 1262 (Fla. 5th DCA 1985); Frizzell v. State, 473 So. 2d 290 (Fla. 2d DCA 1985); Pendergrass v. State, 487 So. 2d 35 (Fla. 4th DCA 1986); Everett v. State, 492 So. 2d 861 (Fla. 5th DCA 1986); Deel v. State, 508 So. 2d 527 (Fla. 5th DCA 1987); Martin v. St…
-
Crosby v. State, 487 So. 2d 416 (Fla. 2d DCA 1986)…his release on probation or community control and that time served incarcerated while awaiting judgment and sentence on the violation proceedings. See see. 921.161, Fla. Stat. (1983); State v. Jones, 327 So. 2d 18 (Fla.1976); Kirkman v. Wainwright, 465 So. 2d 1262 (Fla. 5th DCA 1985); Roesch v. State, 446 So. 2d 269 (Fla. 2d DCA 1984); Dickerson v. State, 427 So. 2d 205 (Fla. 2d DCA 1983); Hernandez v. State, 396 So. 2d 809 (Fla. 5th DCA 1981); Sims v. State, 369 So. 2d 431 (Fla. 2d DCA 1979). Accordingly, w…
-
Lenden Alvin Pendergrass v. State, 487 So. 2d 35 (Fla. 4th DCA 1986)…The opinion in Toombs v. State, 404 So. 2d 766 (Fla. 3d DCA 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. Accordingl…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Jones, 327 So. 2d 18 (Fla. 1976)
- Carter v. State, 452 So. 2d 953 (Fla. 5th DCA 1984)
- Hendrix v. State, 455 So. 2d 449 (Fla. 5th DCA 1984)
- Vendul Oliver Stafford v. State, 455 So. 2d 385 (Fla. 1984)
- Meintzer v. State, 399 So. 2d 133 (Fla. 5th DCA 1981)
- Harrison v. Louie L. Wainwright, 408 So. 2d 800 (Fla. 5th DCA 1982)
- Donnie Thomas v. State, 434 So. 2d 20 (Fla. 2d DCA 1983)