## F IRST 

## D ISTRICT 

## C OURT OF 

## A PPEAL 

## S TATE OF 

## F LORIDA

_____________________________

No. 1D 17

- 5191

_____________________________

H ORACE C UMMINGS

,

Appellant,

v.

S TATE OF F LORIDA

,

Appellee.

_____________________________

On appeal from the Circuit Court for Duval County

. Bruce Anderson , Judge

.

September 18, 2019

P ER C URIAM

.

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 day s of jail credit time as to C ounts 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 A ppellant was found guilty of several offenses: First

- D egree Murder (C ount 1); Arm ed 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. The2 Appellant wa s 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 da ys of jail c redit 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 Ap pellant lat e r 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 t he 30

- year t erms 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, t he lower court
resentenced the A ppellant 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 curia m 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 t o a ward 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

sen tence con tro ls 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 wa s g ranted 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 t he Appell ant was only entitled to jail credit on3 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 fir st 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 A ppellant would receive 228 days of jail credit as to all
counts. The State co ntends, h owe ver, that the lower court could rescind that previously awarded jail credit at the resentencing
because the A ppellant 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 awar ded , 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 vio lation o f th e 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 g ranted. See generally Washington v. State

, 199 So. 3d 1111, 1112 (Fla. 1st DCA 2016); s ee 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 t o the concurrent counts) is premised on the fact that the A ppellant 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 pro nouncem ent o f 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 (F la. 1st DCA 1986).4 lacked authority to modify the sent ences a s ori ginally 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 o f whi ch 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 unc halleng ed se ntences now at issue, but was rather obliged to carry out the clear intent of the original sentencing court as to all counts. 2 Thus, t he order on review is reversed and remanded so that the Appellant’s sentence may be amended in accordance with this o pinio n and the original sentencing.

A FFIRMED in part

, R EVERSED in p art, and R EMANDED for further proceedings.

M AKAR and M.K. T HOMAS

, JJ., concur ; W INO KUR

, J ., concur s in result only with written opinion

.

_____________________________

Not fi nal unt il dispositi on of any tim ely and
authorized motion und er 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 res ent ence only on c ounts where sentence was illegal); Delemos v. State, 969 So. 2d 544 (Fla. 2d DCA 2007) (holding trial court “lacked authority” t o modify a legal sentence on a count not challenged by the defendant); Pitts v. State, 935 So. 2d 634 (Fla . 2d DC A 2006) ( a “mo tion to correct an illegal sentence does not authorize the trial co u rt 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 I II did not p ermi t t rial 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 rese ntenced on counts not affected by vacation of one count of the judgment).5 W INO KUR

, J ., concurring in result only

.

As the majority finds, the court was prohibited from altering the jail

- credit provisions for Co unts 1, 2, 4 , 5, 8, and 1 1

. Becau se 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 upo n resentenci ng , even if t h e resen tencing 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 writt en sentencin g order.”).

The same cannot be said, however, for the jail

- credit provisions for Counts 6, 9, and 10. Unlike the remaining counts, Cummings was resen tenced on those counts. Because such a resentencing is de novo, the resentencing court was emp owered to

co rrect the err one ous p rovision of jail credit. See Kopson v. State

, 162 So. 3d 93, 94 (Fla. 4th DCA 2014) (holding that a trial court
“can correct an e rroneous award of jail credit in a new sentencing proceeding without violating double jeopardy principles. ”); see also Sta te v. Collins , 985 So. 2d 985, 989 (Fla. 2008) (recognizing resentencing “as an entirely new proceeding [which] . . . should proceed d e novo on all issues bearing on the proper sentence” (citation and internal quotations marks o mitted)). Th e only
limita tio n 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 w as nothi ng 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 co rrectly note d th at Cummings was n ot 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 entitle d to have [their] j ail time cre dit pyr amided by bein g given credit on each sentence for the full time [they] spend [] in6 It cannot be ignor ed that Cumm ings is servi ng a man datory life sentence plus thirty years imprisonment . It is , at best, unclear whether Cummings will see any benefit from an add itional thirty

- four days of jail credit on this life

- plus

- thirty

sentence , especially since it is concurrent with jail cre dit he

a lready received. C ourts and litigants seeking real relief may be
better off if these claims were limited to ones where the
def endant could actually receive a real benefit.

_____________________________

Horace Cummings, pr o se , Appell ant.

Ashley Moody , A ttorney General, and Daniel Krumbholz, Assistant Attorney General, Ta l lahassee

, for Appellee.

jail awaiting disposition” (citation and internal quotations marks omitted)).