FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

No. 1D17-5191

_____________________________

HORACE CUMMINGS,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

_____________________________

On appeal from the Circuit Court for Duval County.

Bruce Anderson, Judge.

September 18, 2019

PER CURIAM.

The Appellant, Horace Cummings, appeals from an order 

denying his postconviction motion brought pursuant to Florida 

Rule of Criminal Procedure 3.801. We reverse the denial of his 

claim for 228 days of jail credit time as to Counts 2, 4, 5, 8, and 

11 in the underlying case. As to all other claims, we affirm 

without further comment.

In 1997, following a jury trial, the Appellant was found 

guilty of several offenses: First-Degree Murder (Count 1); Armed 

Kidnapping (Count 2); Armed Robbery (Counts 4, 5, & 8); 

Attempted Armed Robbery (Counts 6, 9, & 10); and Armed 

Burglary, as a lesser included offense of Armed Burglary with an 

Assault (Count 11). He was acquitted on Counts 3, 7, and 12. The 
2

Appellant was sentenced to life on Count 1, and 30 years each on 

Counts 2, 4, 5, 6, 8, 9, 10, and 11. Counts 2 through 11 were set to 

run consecutively to Count 1, and concurrent with each other.

As to all of the above counts, the Appellant received 196 days 

of jail credit in the written judgment and sentence, despite that 

he was awarded 228 days in an oral pronouncement at the 

sentencing hearing. This Court affirmed on direct appeal. See 

Cummings v. State, 743 So. 2d 511 (Fla. 1st DCA 1999) (table). 

The Appellant later filed a rule 3.800 motion to correct an illegal 

sentence on February 27, 2012, and this Court reversed the lower 

court’s order denying it. See Cummings v. State, 106 So. 3d 33 

(Fla. 1st DCA 2013). 

On remand, the lower court concluded that the 30-year terms 

as to Counts 6, 9, and 10 were illegal because the offenses had 

been improperly reclassified from second-degree to first-degree 

felonies. Since reclassification was improper, the lower court 

resentenced the Appellant to the maximum term of 15 years as to 

those three counts, to be served concurrently as to not only Count 

2, but also to Count 1 as well. The Appellant again received 196 

days of credit time as to all counts. Counts 2, 6, 9, 10, and 11 

remained consecutive to Count 1. This Court per curiam affirmed 

the above revised sentence. See Cummings v. State, 181 So. 3d 

488 (Fla. 1st DCA 2015) (table). 

On April 25, 2016, the Appellant filed the present rule 3.801 

motion. He asserted that, during the resentencing, the lower 

court erred by failing to award 228 days of jail credit as to all of 

the above counts, as orally pronounced at the original sentencing. 

See e.g., Hall v. State, 105 So. 3d 642, 644 (Fla. 1st DCA 2013) 

([I]t is well settled that the trial court’s oral pronouncement of 

sentence controls over the written sentencing order.”). On 

December 27, 2016, the lower court partially granted the 

Appellant’s motion, but only as to the counts concurrent with 

Count 1, and not as to the consecutive counts. That is, the 

additional requested credit was granted as to Counts 1, 6, 9, and 

10 based on the original award. The lower court did not grant the 

additional credit as to Counts 2, 4, 5, 8, and 11, and this missing 

credit is the subject of the instant appeal. The lower court 

explained that the Appellant was only entitled to jail credit on 
3

the first of consecutive sentences, but not the consecutive 

sentences which followed. See Barnishin v. State, 927 So. 2d 68, 

71 (Fla. 1st DCA 2006) (holding that a defendant is entitled to 

jail credit as to only the first of consecutive sentences). 

In response to this Court’s Toler order, 1 the State did not 

dispute that the original sentencing court had orally announced 

that the Appellant would receive 228 days of jail credit as to all 

counts. The State contends, however, that the lower court could 

rescind that previously awarded jail credit at the resentencing

because the Appellant was not legally entitled to it. In view of 

this Court’s previous opinions which bar the rescission of jail 

credit once it has been awarded, we reject the State’s argument. 

This Court has long recognized that a “trial court may not 

sua sponte rescind jail credit previously awarded at any time

even if the initial award was improper.” Wheeler v. State, 880 So. 

2d 1260, 1261 (Fla. 1st DCA 2004) (citing Lebron v. State, 870 So. 

2d 165 (Fla. 2d DCA 2004), and Linton v. State, 702 So. 2d 236, 

236-37 (Fla. 2d DCA 1997)) (emphasis added). “This court views 

the rescission of previously awarded jail credit as an increased 

penalty and a violation of the defendant's rights under the Fifth 

Amendment of the United States Constitution.” Session v. State, 

37 So. 3d 873, 873 (Fla. 1st DCA 2010). Accordingly, the question 

of legal entitlement to jail credit is immaterial where it has 

already been granted. See generally Washington v. State, 199 So. 

3d 1111, 1112 (Fla. 1st DCA 2016); see also Davis v. State, 63 So. 

3d 847 (Fla. 1st DCA 2011) (same); Lebron v. State, 870 So. 2d 

165 (Fla. 2d DCA 2004) (same). 

Here, the partial granting of the present motion (as to the 

concurrent counts) is premised on the fact that the Appellant 

initially received 228 days of jail credit as to all counts, including 

those running consecutive to the life sentence – Counts 2, 4, 5, 8, 

and 11. Even if the original oral pronouncement of that credit 

was erroneous, the order on review must still be reversed because 

the above authorities preclude the rescission of that jail credit. 

Moreover, the rescission was improper because the lower court 

 1 Toler v. State, 493 So. 2d 489 (Fla. 1st DCA 1986).
4

lacked authority to modify the sentences as originally imposed. 

The prior appeal which resulted in the subject resentencing only 

concerned the concurrent nature of Counts 6, 9, and 10. At the 

original sentencing, the Appellant received 228 days of jail credit 

as to Counts 2, 4, 5, 8, and 11, all of which were consecutive to 

Count 1. Neither the Appellant nor the State sought review as to 

those particular counts, and the corresponding sentences 

remained intact on remand. The trial court was therefore not at 

liberty to modify the valid and unchallenged sentences now at 

issue, but was rather obliged to carry out the clear intent of the 

original sentencing court as to all counts.2 Thus, the order on 

review is reversed and remanded so that the Appellant’s sentence 

may be amended in accordance with this opinion and the original 

sentencing.

AFFIRMED in part, REVERSED in part, and REMANDED for 

further proceedings.

MAKAR and M.K. THOMAS, JJ., concur; WINOKUR, J., concurs in 

result only with written opinion.

_____________________________

Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

_____________________________

 2 See also Suarez v. State, 974 So. 2d 451 (Fla. 3d DCA 2008)

(resentencing judge could resentence only on counts where 

sentence was illegal); Delemos v. State, 969 So. 2d 544 (Fla. 2d 

DCA 2007) (holding trial court “lacked authority” to modify a 

legal sentence on a count not challenged by the defendant); Pitts 

v. State, 935 So. 2d 634 (Fla. 2d DCA 2006) (a “motion to correct 

an illegal sentence does not authorize the trial court to modify a 

legal sentence on another count”); Gordon v. State, 635 So. 2d 

1017 (Fla. 1st DCA 1994) (order remanding for resentencing on 

counts II and III did not permit trial court to modify legal 

sentences on counts I and IV); Seago v. State, 627 So. 2d 1316 

(Fla. 2d DCA 1993) (reversing trial court which resentenced on 

counts not affected by vacation of one count of the judgment). 
5

WINOKUR, J., concurring in result only.

As the majority finds, the court was prohibited from altering 

the jail-credit provisions for Counts 1, 2, 4, 5, 8, and 11. Because 

the original sentencing judge pronounced 228 days of jail credit 

for these counts, and because the sentences for these counts were 

not altered by the earlier Rule 3.800(a) motion, it was error to 

impose only 196 days upon resentencing, even if the resentencing 

court found that Cummings should have received only 196 days 

credit. See Hall v. State, 105 So. 3d 642, 644 (Fla. 1st DCA 2013) 

(finding “that the trial court’s oral pronouncement of sentence 

controls over the written sentencing order.”).

The same cannot be said, however, for the jail-credit 

provisions for Counts 6, 9, and 10. Unlike the remaining counts, 

Cummings was resentenced on those counts. Because such a 

resentencing is de novo, the resentencing court was empowered to 

correct the erroneous provision of jail credit. See Kopson v. State, 

162 So. 3d 93, 94 (Fla. 4th DCA 2014) (holding that a trial court 

“can correct an erroneous award of jail credit in a new sentencing 

proceeding without violating double jeopardy principles.”); see 

also State v. Collins, 985 So. 2d 985, 989 (Fla. 2008) (recognizing 

resentencing “as an entirely new proceeding [which] . . . should 

proceed de novo on all issues bearing on the proper sentence” 

(citation and internal quotations marks omitted)). The only 

limitation on resentencing was that a harsher sentence on 

remand would have been presumptively invalid. Alabama v. 

Smith, 490 U.S. 794, 799 (1989). Cummings did not receive a 

harsher sentence on resentencing (fifteen years as opposed to 

thirty years), so there was nothing inappropriate about correcting 

the erroneous provision of 228 jail credit to the correct amount of 

196 days on those counts.

∗ Either way, Cummings received a far 

lesser sentence on Counts 6, 9, and 10.

 ∗ The trial court correctly noted that Cummings was not 

entitled to the jail credit on his consecutive sentences. See 

Barnishin v. State, 927 So. 2d 68, 71 (Fla. 1st DCA 2006) (holding 

that when consecutive sentences are imposed, defendants are 

“not entitled to have [their] jail time credit pyramided by being 

given credit on each sentence for the full time [they] spend[] in 
6

It cannot be ignored that Cummings is serving a mandatory 

life sentence plus thirty years imprisonment. It is, at best,

unclear whether Cummings will see any benefit from an 

additional thirty-four days of jail credit on this life-plus-thirty 

sentence, especially since it is concurrent with jail credit he 

already received. Courts and litigants seeking real relief may be 

better off if these claims were limited to ones where the 

defendant could actually receive a real benefit.

_____________________________

Horace Cummings, pro se, Appellant.

Ashley Moody, Attorney General, and Daniel Krumbholz, 

Assistant Attorney General, Tallahassee, for Appellee.

 

jail awaiting disposition” (citation and internal quotations marks 

omitted)).