Double Credit Sentencing Error Corrected

Probation Sentences

Probation sentences seem like a blessing, but they often end up a trap. You can live clean up to the day before it ends, violate and go to prison. Time spent on probation doesn’t count toward a prison sentence, but jail sentences do. A mix-up over jail credit while on probation leads to an interesting sentencing error in State v. Blair.

Confusing Sentencing Hearing Leads to Sentencing Error

In 2009, a judge sentences Blair to 12 years of probation for a Second Degree Grand Theft. Shortly thereafter, Blair violates probation, receiving 3 years in prison as a condition of reinstating his probation. That means Blair still has to serve probation upon release from prison. If the judge revokes probation and sentences Blair to 3 years in prison, the sentence ends when he leaves prison.

In 2019, Blair violates probation. Now the problems begin. During sentencing, the judge announces: “Sentence you to 60 months Department of Corrections. Give you credit for time served of 300 days, county jail, 300 days and all—and give you credit for all DOC, uh, prior credit which they’ll calculate.” This confuses the person writing the sentencing order.

The sentencing order reads “300 days time served between date of arrest as a violator following release from prison to the date of resentencing.” This order accidentally doubles the 300 day jail credit award. Blair served 300 days for his first violation. This order also gives him Blair gets 300 days credit time served for his second violation when he only spent 2 days in custody. No one notices the error.

In January 2021, the Florida Department of Corrections discovers the error and contacts the judge. In February 2021, the judge amends the sentencing order to give Blair 2 days credit instead of 300. Blair files a Motion to Correct Sentence. Then the judge returns the extra 300 days credit. Now the State of Florida files a Motion to Correct Sentence and the judge, after holding a hearing, reduces the credit to 2 days. Blair appeals the order.

Correcting Scrivener’s Error in Sentence Doesn’t Violate Double Jeopardy

Blair raises two issues on appeal. First, could the judge change the sentence so late after its imposition? People can’t file these motions at any time for any reason. Second, does Double Jeopardy prevent the judge from taking away the credit? Double Jeopardy prevents a sentence from increasing after the fact. Sentences can only shorten in length.

The Fourth District rules against Blair on both issues. First, it says Florida Rule of Criminal Procedure 3.800(b) allows the resentencing “to correct a scrivener’s error.” Scrivener’s errors are “clerical or ministerial errors in a criminal case that occur in the written sentence, judgment, or order of probation or restitution.” Jail credit mistakes count as clerical errors. Second, the change doesn’t violate Double Jeopardy because correcting an erroneous jail credit calculation in no way increases the sentence.

Conflict in the Florida District Courts of Appeal

In ruling, it points out that the First and Second District Courts of Appeal disagree with the Fourth District on this issue. If this happened to Blair in Tallahassee, Jacksonville or Tampa, then he’d receive the extra jail credit. The Fourth District certified the conflict, which lets Blair file a Petition to the Florida Supreme Court for discretionary review. Most cases end when a district court rules, but the Florida Supreme Court can intervene when the courts below disagree. We’ll see if Blair files a Petition.

Read the Blair opinion here!

Talk to an Experienced Florida Criminal Defense Attorney!

Talk to Jared at Brown Legal PLLC about Florida criminal sentencing! He’s an Ivy League educated former prosecutor with over 15 years experience! The criminal defense firm Brown Legal PLLC operates from Fort Lauderdale, Florida, but regularly handles cases throughout South Florida and the rest of the state. He’s represented people as far away as Pensacola and as far south as Key West. Reach out over the phone at (954) 524-6700 or through the Contact Page if you have any questions.

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