Opinion
Case No. 5D06-1322.
Opinion filed September 29, 2006.
Appeal from the Circuit Court for Flagler County, Kim C. Hammond, Judge.
Miguel Jose Gallinat, DeFuniak Springs, pro se.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeffrey R. Casey, Assistant Attorney General, Daytona Beach, for Appellee.
Miguel Jose Gallinat appeals an order determining the amount of jail credit to which he is entitled in three cases. By prior order of the trial court (entered by a different judge), Gallinat was given concurrent credit for 285 days in all three cases. Jail records indicate that while Gallinat was entitled to 285 days in case no. 02-357, he had only served 264 days in case no. 03-629 and 96 days in case no. 02-657, prior to sentencing. Despite this discrepancy, the State did not appeal from the order awarding 285 days in all cases. Three months later, the trial court entered the "corrected order" now on appeal, which reduced the jail credit award in case nos. 03-629 and 02-657 to the time reflected in the jail records.
We have previously ruled that because a trial court only retains jurisdiction to modify a legal sentence for 60 days under Florida Rule of Criminal Procedure 3.800, the court lacks jurisdiction to reduce the amount of credit previously awarded to an inmate beyond this 60-day limit. Syverson v. State, 659 So. 2d 1344 (Fla. 5th DCA 1995). Because the corrected order was entered more than 60 days after the original order, we find that the trial court lacked jurisdiction to correct the erroneous jail credit award. We therefore reverse, and remand with instructions that Gallinat be given credit for 285 days time served (as of the date of sentencing) in each case.
We note that several Florida appellate courts hold that a trial court can never correct an erroneous award of too much jail credit on the theory that this increases the sentence in violation of the prohibition against double jeopardy. See Wheeler v. State, 880 So. 2d 1260 (Fla. 1st DCA 2004); Linton v. State, 702 So. 2d 236 (Fla. 2d DCA 1997). We question this analysis. Correcting jail credit does not increase the sentence imposed. Rather, the question is simply a factual one of how much of the sentence defendant has already served. However, we need not address the issue at this time.
REVERSED AND REMANDED.
THOMPSON and EVANDER, JJ., concur.