Opinion
Case No. 5D21-1062
11-12-2021
Jeffry DICKERSON, Appellant, v. STATE of Florida, Appellee.
Matthew J. Metz, Public Defender, and Joseph Chloupek, Assistant Public Defender, Daytona Beach, for Appellant. Ashley Moody, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
Matthew J. Metz, Public Defender, and Joseph Chloupek, Assistant Public Defender, Daytona Beach, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
TRAVER, J.
Jeffry Dickerson appeals the postconviction court's denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the postconviction court's denial of Dickerson's motion but remand for it to strike an order concerning Dickerson's Department of Corrections ("DOC") gain time.
The postconviction court set an evidentiary hearing on several grounds Dickerson raised, and accordingly, ordered him transported from DOC. Following the hearing, which occurred about six weeks after Dickerson arrived, the postconviction court opined Dickerson's arguments were "completely unsupported" and "ridiculous." It suggested it would recommend to DOC that Dickerson not receive gain time for time spent awaiting his hearing. It then followed its statement with a signed "Felony Court Order" containing an unelaborated denial of Dickerson's motion and a directive that "[Dickerson] is not to receive credit for time out of facility awaiting this hearing."
It later issued a detailed order outlining the bases for denying Dickerson's motion.
Only DOC is responsible for calculating and awarding credit for time served after imposition of a sentence, not a trial court. Buelow v. State , 994 So. 2d 1214, 1215 (Fla. 5th DCA 2008). Lower courts are permitted to recommend DOC institute disciplinary proceedings, provided they do not order DOC to take any explicit action. See Hall v. State , 752 So. 2d 575, 581 (Fla. 2000) (finding court may only "recommend" that DOC sanction an inmate). The postconviction court lacked authority to direct DOC to discipline Dickerson by forfeiting his gain time or denying him credit for time served in jail awaiting the hearing; this violated the doctrine of separation of powers. See id . (citing Art. II, § 3, Fla. Const.); Isom v. State , 43 So. 3d 776, 777 (Fla. 5th DCA 2010). Accordingly, we remand and direct the postconviction court to strike that portion of its order. See, e.g., Cole v. State , 913 So. 2d 709, 710 (Fla. 5th DCA 2005).
We express no opinion on the frivolity of Dickerson's petition. On remand, the postconviction court may pursue the appropriate procedure regarding DOC discipline at its discretion. See § 944.279(1), Fla. Stat. (2020) ; Fla. R. Crim. P. 3.850(n)(3).
AFFIRMED and REMANDED.
HARRIS and NARDELLA, JJ., concur.