Carter v. State

616 So. 2d 199, 1993 Fla. App. LEXIS 4232, 1993 WL 114673

Opinion

PARKER, Judge.

Jerry Carter appeals his judgment and sentence, alleging that the trial court failed to award him accrued gain time. The state concedes error. We reverse.

Carter was charged with robbery with a firearm, which occurred in November of 1988. Carter pleaded guilty and was sentenced as a youthful offender to four years’ imprisonment followed by two years’ community control. In 1990, Carter pleaded guilty to violating his community control and a new period of community control was imposed. Subsequently, Carter pleaded guilty to violating this new period of community control, and the court revoked his community control and sentenced him to four years’ imprisonment with credit for time served. The written sentence gave Carter credit for only actual time served.

Carter argues and the state agrees that he should be given credit for the entire four years served because the amendments to sections 948.06(6) and 944.28(1), Florida Statutes (1987) were not effective at the time of his offense.¹ State v. Green, 547 So.2d 925 (Fla.1989). In Green, the supreme court concluded that when the probationary part of a split sentence is revoked, a prisoner must be given credit for gain time earned during the incarcerative portion of his sentence. Because the effective dates of the amendments to sections 948.06(6) and 944.28(1), Florida Statutes (1987) are after the date on which Carter committed his offense, Carter’s violation of probation sentence must be reversed and remanded with directions to credit Carter with four years for the state prison portion of his split sentence.

Reversed and remanded for resentenc-ing.

FRANK, A.C.J., and BLUE, J., concur.

1 . Section 948.06(6), Florida Statutes (1989) permits the trial court to forfeit gain time at sentencing when revoking a community control sentence when the offense occurred after October 1, 1989. See Ch. 89-531, §§ 13 and 20, Laws of Fla. Section 944.28(1), Florida Statutes (1989) permits the Department of Correction to forfeit gain time for a revocation of community control when the offense occurred after October 1, 1989. See Ch. 89.531, §§ 6 and 20, Laws of Fla.