         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                                 NOT FINAL UNTIL TIME EXPIRES TO
                                                 FILE MOTION FOR REHEARING AND
                                                 DISPOSITION THEREOF IF FILED


JAMES MOBLEY,

             Appellant,

 v.                                                     Case No. 5D16-4340

STATE OF FLORIDA,

             Appellee.

________________________________/

Opinion filed October 19, 2018

Appeal from the Circuit Court
for Flagler County,
Matthew M. Foxman, Judge.

James S. Purdy, Public Defender, and
Nancy Ryan, Assistant Public Defender,
Daytona Beach, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Lori N. Hagan, Assistant
Attorney General, Daytona Beach, for
Appellee.


LAMBERT, J.

      James Mobley was convicted after trial of sale of cocaine within 1000 feet of a

public park, in violation of section 893.13(1)(c)1., Florida Statutes (2014). This statute

provides, in pertinent part, that a “defendant must be sentenced to a minimum term of

imprisonment of 3 calendar years.” The trial court orally pronounced Mobley’s sentence
as seven years in the state prison “with the first 36 months day-for-day minimum

mandatory.” This “day-for-day” language is the sole topic of this appeal. 1

       Mobley argues that by directing the first thirty-six months of his sentence be served

“day-for-day,” the trial court has improperly precluded him from being eligible for gain-

time to which he may otherwise be entitled to under section 944.275, Florida Statutes,

during the mandatory minimum portion of his sentence. Mobley asserts that when the

Legislature intends to prohibit a defendant from being eligible for gain-time during the

service of a mandatory minimum term of imprisonment, it uses explicit language to that

effect, see Mastay v. McDonough, 928 So. 2d 512, 514 (Fla. 1st DCA 2006), and that

section 893.13(1)(c)1., under which he was sentenced, lacks this limiting language. We

agree. See Melvin v. State, 177 So. 3d 648, 650 (Fla. 1st DCA 2015) (striking the day-

for-day provision from mandatory minimum sentence after comparing the language from

sections 316.1935(6), 775.087(2)(a), and 784.07(3), that require the imposition of

mandatory minimum prison sentences and also specifically provide that a defendant “is

not eligible for statutory gain-time under [section] 944.275 or any form of discretionary

early release, other than pardon or executive clemency, or conditional medical release

under [section] 947.149, prior to serving the minimum sentence” to the statute under

which the defendant was sentenced that does not have similar language).

       Here, Mobley was sentenced under section 893.13(1)(c)1. This statute does not

contain explicit language precluding eligibility for statutory gain-time prior to serving the

mandatory minimum sentence, leading us to conclude, as the First District did in Melvin




       1   Mobley has not challenged his conviction.



                                             2
and Mastay, that the Legislature did not intend to prohibit gain-time from being awarded

regarding the mandatory minimum portion of Mobley’s sentence. The trial court, by its

“day-for-day” sentence pronouncement, has affected Mobley’s ability to receive this gain-

time, which it lacks authority to do. See Shupe v. State, 516 So. 2d 73, 73 (Fla. 5th DCA

1987) (“[A] trial court is without authority to prevent gain time [as] the award of gain time,

pursuant to section 944.275, Florida Statutes, is solely within the province of the

Department of Corrections.”). The remedy is to strike the language or to treat it as

surplusage.   See Miller v. State, 882 So. 2d 480, 481 (Fla. 5th DCA 2004) (“If, in

sentencing, a court attempts to bar or grant gain time, such language has been treated

as surplusage or stricken.” (citing Shupe, 516 So. 2d at 73; Singletary v. Coronado, 673

So. 2d 924, 924 (Fla. 2d DCA 1996))).

       Accordingly, we strike from the record the “day-for-day” provision of the sentence

imposed and affirm Mobley’s sentence, as modified.


       Sentence AFFIRMED, as modified; STRIKE “day-for-day” provision from the
record.


COHEN, C.J., and EVANDER, J., concur.




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