JOSEPH E. BLAIR v. STATE OF FLORIDA

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

JOSEPH E. BLAIR,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D21-3214

[March 2, 2022]

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.

Lucie County; William L. Roby, Judge; L.T. Case No.

562006CF005141AXXXXX.

Carey Haughwout, Public Defender, and Benjamin Eisenberg, Assistant

Public Defender, West Palm Beach, for appellant.

Ashley Moody, Attorney General, Tallahassee, and Melynda L. Melear,

Senior Assistant Attorney General, West Palm Beach, for appellee.

LEVINE, J.

After a violation of probation hearing, the trial court determined that

appellant willfully and substantially violated his probation and sentenced

appellant to 60 months in prison, giving credit for previous time served.

The Department of Corrections (“DOC”) later discovered a mistake in the

computation of the prior time served in the written sentencing order.

Appellant now argues that the trial court erred by correcting the order that

incorrectly gave him double credit.

Appellant requests that this court reinstate the credit of time originally

given, arguing that the state was without jurisdiction to file the motion to

correct the erroneous double credit of prior time served, and further, that

the trial court’s subsequent correction violated double jeopardy. We

disagree. We find that the trial court did not err, and as such, we affirm.

In 2007, appellant was charged with second-degree grand theft and

sentenced to twelve years’ probation. Soon after, appellant violated his

probation. His probation was then reinstated on the condition that he

serve three years in prison. At the time of this violation of probation

sentencing, appellant had 300 days of credit for time served prior to the

sentence.

In 2019, appellant’s probation officer filed an affidavit alleging a new

violation of probation. Appellant was arrested and released in the same

day. Appellant denied the violation of probation allegations and a hearing

was held. The trial court found that appellant had willfully and

substantially violated his probation.

During the sentencing hearing, the state requested that appellant be

given a prison sentence. A discussion ensued regarding appellant’s

various accumulated jail credit. The trial court asked, “[I]f I sentence him

to prison, he has got time served of 3 years already?” The state responded

affirmatively, adding the time appellant had served in county jail initially.

The state cautioned that the trial court needed to be “somewhat artful” in

pronouncing the sentence in light of time served. The state suggested that,

to avoid issues with double credit, the trial court pronounce appellant’s

sentence, announce his credit for time served in county jail, and leave it

for the DOC to calculate his DOC credit for time served.

The trial court then pronounced appellant’s sentence as follows:

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.

The trial court entered a written sentencing order in July 2020, granting

appellant “300 DAYS time served between date of arrest as a violator

following release from prison to the date of resentencing.”

In January 2021, the DOC contacted the trial court regarding

appellant’s sentence. Following the written sentencing order, the DOC had

applied “300 days VOP jail credit, 300 original days jail credit and 631

days prison credit.” However, the DOC believed that appellant was entitled

to only two days of jail credit on this violation of probation, not 300 days.

Thus, the DOC believed that appellant’s original jail credit had been

erroneously duplicated.

The trial court executed an amended resentencing based on this letter

and removed the duplicated 300 days of violation of probation credit and

gave him two days of credit instead. This order was entered in February

2021.

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In September 2021, appellant filed a motion to correct illegal sentence,

requesting that the trial court reinstate the 300-day jail time credit

originally ordered. The trial court granted appellant’s motion and

rescinded the order reflecting the DOC correction.

The state filed a motion to correct the amended judgment and sentence.

At the hearing, the trial court now agreed that appellant’s original jail

credit had been mistakenly doubled. Appellant’s counsel argued that the

amended judgment reflected the trial court’s original oral pronouncement,

but admitted that the extra 300 days “may somehow on paper result in, I

guess, a somehow a doubling of time.” The trial court then entered an

order clarifying appellant’s sentence and rescinding the double credit.

This appeal follows.

We review de novo whether a court has subject matter jurisdiction.

Sanchez v. Fernandez, 915 So. 2d 192, 192 (Fla. 4th DCA 2005). Further,

we review de novo all allegations of double jeopardy and illegal sentencing.

Raja v. State, 317 So. 3d 139, 145 (Fla. 4th DCA 2021).

Appellant argues that the trial court lacked jurisdiction to correct his

sentence since it took place more than one year after he was originally

sentenced and thus exceeded the “60 day” maximum to file a motion to

modify under 3.800(c).

Florida Rule of Criminal Procedure 3.800 provides three vehicles to

correct, reduce, or modify a sentence. Rule 3.800(a) provides that “[a]

court may at any time correct an illegal sentence imposed by it, or an

incorrect calculation made by it in a sentencing scoresheet, when it is

affirmatively alleged that the court records demonstrate on their face an

entitlement to that relief . . . .” Rule 3.800(b) provides that “[a] motion to

correct any sentencing error, including an illegal sentence or incorrect jail

credit, may be filed as allowed by this subdivision. . . . Motions may be

filed by the state under this subdivision only if the correction of this

sentencing error would benefit the defendant or to correct a scrivener’s

error.” Rule 3.800(c) is not relevant to this appeal, since the DOC’s letter

was sent to the trial court more than 60 days after appellant was sentenced

at his violation of probation sentencing hearing.

We find that the trial court did not err in correcting the double counting

of prior jail time. The state’s motion to correct appellant’s jail credit was

clearly a motion to correct a scrivener’s error pursuant to rule 3.800(b).

Scrivener’s errors are “clerical or ministerial errors in a criminal case that

occur in the written sentence, judgment, or order of probation or

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restitution.” Ashley v. State, 850 So. 2d 1265, 1268 n.3 (Fla. 2003)

(citation and emphasis omitted); Migdal v. State, 970 So. 2d 445, 448-49

(Fla. 4th DCA 2007) (holding discrepancies between written sentences and

oral pronouncement to be scrivener’s errors). Significantly, miscalculation

of jail credit can be a clerical error. Ashley, 850 So. 2d at 1268.

The trial court stated regarding jail credit: “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.” The written sentencing

order, however, granted appellant 300 days of time served for this violation

of probation. Later the DOC informed the trial court that appellant was

not entitled to 300 days of credit for the violation of probation in this case.

Appellant was entitled to only 300 days of jail credit emanating from the

original violation of probation case—not the present case.

In this case, in the written sentence the trial court, by mistake and

contrary to the oral pronouncement, granted 300 days of jail credit for the

time appellant served in the violation of probation arrest. Appellant was

not entitled to 300 days since he was booked and release in this case on

the very same day. See Marshall v. State, 78 So. 3d 72, 73 (Fla. 4th DCA

2012) (finding a discrepancy in the oral pronouncement and written

sentence where the oral pronouncement granted eight months’ probation

and the written sentence reflected eight years); see also Morris v. State,

292 So. 3d 838, 839 (Fla. 1st DCA 2020) (finding an oral pronouncement

of jail credit on concurrent sentences inconsistent with a written sentence

providing jail credit on only one count). Thus, the award of 300 days of

jail credit was a scrivener’s error and the trial court did not err in granting

the motion under rule 3.800(b). 1

Finally, appellant argues that the trial court’s correcting the order to

rescind the double counting of jail time violated double jeopardy. We

disagree.

Of course, “[o]nce a sentence has been imposed and the person begins

to serve the sentence, that sentence may not be increased without running

afoul of double jeopardy principles.” Ashley, 850 So. 2d at 1267. However,

“[d]ouble jeopardy does not guarantee a defendant the benefit of a judge’s

good-faith mathematical or clerical errors.” Cheshire v. State, 568 So. 2d

908, 913 (Fla. 1990). As Justice Black observed many years ago: “The

Constitution does not require that sentencing should be a game in which

1The state could have also brought this motion under rule 3.800(a) as an illegal

sentence since the written sentence conflicted with the oral pronouncement.

Williams v. State, 957 So. 2d 600, 603 (Fla. 2007).

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a wrong move by the judge means immunity for the prisoner.” Bozza v.

United States, 330 U.S. 160, 166-67 (1947).

The Double Jeopardy clause serves, in part, to protect a defendant’s

“‘legitimate expectations’ as to the length of his sentence.” Goene v. State,

577 So. 2d 1306, 1308 (Fla. 1991). “[C]orrecting an erroneous jail credit

calculation in no way increases the sentence imposed.” Gallinat v. State,

941 So. 2d 1237, 1239 (Fla. 5th DCA 2006). In the case, appellant could

not have legitimately expected to receive 300 extra days of jail credit for

time he did not serve. “[T]he defendant’s only legitimate expectation is that

he or she will serve the full sentence, and no more.” Id. at 1242. In the

present case, like Gallinat, “if the defendant had only served two days in

jail prior to sentencing, correcting the time served to properly reflect that

historical fact will not result in imprisonment for more than [the sentence

length], and does not ‘increase the sentence.’” Id. at 1241; see also Spear

v. State, 294 So. 3d 995, 1001-03 (Fla. 5th DCA 2020), review granted,

SC20-676, 2020 WL 3866920 (Fla. July 9, 2020) (upholding the Gallinat

decision and certifying the issue of a trial court’s jurisdiction to sua sponte

correct overreported jail time); but see Barbesco v. State, 264 So. 3d 338,

340 (Fla. 1st DCA 2019) (“It is well established that a court may not rescind

jail credit, even if it has been awarded in error.”); King v. State, 913 So. 2d

758, 760 (Fla. 2d DCA 2005) (“[A] trial court has no authority to rescind a

defendant’s jail credits . . . even when the jail credits were improperly

awarded.”) (citation and internal quotation marks omitted).

The Gallinat case noted only two circumstances where changing jail

credits could run afoul of double jeopardy principles: (1) when the

defendant negotiates an overall sentence which includes the parties

agreeing to the amount of credit time served, and (2) where the trial court

exercises its discretion in awarding jail credit, such as time incarcerated

out of state. 941 So. 2d at 1240. Our court in Douze v. State, 25 So. 3d

59 (Fla. 4th DCA 2009), found that rescinding jail credit was illegal, based

on the facts in that case. However, Douze was a negotiated settlement

case and clearly fell into one of two enumerated exceptions listed in

Gallinat. Douze specifically noted that “[a]ppellant’s circumstances fall

into the exception.” Id. at 61, n.2. Further, and significantly, the present

case is not a plea case but rather was a contested violation of probation

hearing.

Awarding appellant additional jail credit, that he did not serve or earn,

would thwart “society’s interest in extracting a full and just punishment

for crime.” Gallinat, 942 So. 2d at 1242. Further, awarding undeserved

or unearned jail credits, due to mistake or error, undermines society’s

overall confidence in the criminal justice system.

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We conclude that the trial court did not err, had jurisdiction to correct

the scrivener’s error, and did not violate double jeopardy. We affirm and

remand with instructions to correct a scrivener’s error on the clarification

order, as it omitted the two days of credit that appellant did earn.

Finally, as was done in Spear, we certify conflict with the First District’s

decisions in Barbesco v. State, 264 So. 3d 338 (Fla. 1st DCA 2019);

Cummings v. State, 279 So. 3d 818 (Fla. 1st DCA 2019); Washington v.

State, 199 So. 3d 1110 (Fla. 1st DCA 2016); and Wheeler v. State, 880 So.

2d 1260 (Fla. 1st DCA 2004), and with the Second District’s decisions in

King v. State, 913 So. 2d 758 (Fla. 2d DCA 2005); Lebron v. State, 870 So.

2d 165 (Fla. 2d DCA 2004); Platt v. State, 827 So. 2d 1064 (Fla. 2d DCA

2002); Keene v. State, 826 So. 2d 327 (Fla. 2d DCA 2002); Linton v. State,

702 So. 2d 236 (Fla. 2d DCA 1997); and Gilmore v. State, 523 So. 2d 1244

(Fla. 2d DCA 1988).

Affirmed and remanded with instructions; conflict certified.

WARNER and KLINGENSMITH, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

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