                                      IN THE DISTRICT COURT OF APPEAL
                                      FIRST DISTRICT, STATE OF FLORIDA
RICHARD ALFRED
WASHINGTON,                           NOT FINAL UNTIL TIME EXPIRES TO
                                      FILE MOTION FOR REHEARING AND
      Appellant,                      DISPOSITION THEREOF IF FILED

v.                                    CASE NO. 1D15-0915

STATE OF FLORIDA,

      Appellee.


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Opinion filed September 8, 2016.

An appeal from the Circuit Court for Duval County.
Charles W. Arnold, Judge.

Nancy A. Daniels, Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Virginia Harris, Assistant Attorney
General, Tallahassee, for Appellee.




PER CURIAM.

      Appellant, Richard Alfred Washington, challenges his convictions and

sentences for false imprisonment, felony battery, and aggravated assault. We affirm
the convictions without further discussion, but reverse and remand the sentences for

the reasons that follow.

      At the sentencing hearing, the trial court adjudicated Appellant guilty of false

imprisonment (Count 1), felony battery (Count 2), and aggravated assault (Count 3)

and sentenced him on each count as a prison releasee reoffender (“PRR”) to a

minimum mandatory term of five years of imprisonment, to run consecutively, with

861 days of credit for time served. Subsequently, the trial court sua sponte recalled

the case and rescinded the previously awarded jail credit on Counts 2 and 3,

explaining it had erroneously believed the law required it to award jail credit as to

each count. The trial court then entered a judgment and sentence reflecting that

Appellant was sentenced on each count as a PRR to a minimum mandatory term of

five years of imprisonment, to run consecutively, with 861 days of jail credit on

Count 1 only. While this appeal was pending, Appellant filed a motion to correct

sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2),

unsuccessfully challenging his PRR designation on Counts 1 and 2 and the rescission

of jail credit on Counts 2 and 3.

      The legality of a sentence presents a question of law and is reviewed de

novo. Clowers v. State, 31 So. 3d 962, 966 (Fla. 1st DCA 2010). As Appellant

contends, false imprisonment and felony battery do not qualify for PRR sentencing

given that they are not enumerated offenses under section 775.082(9)(a), Florida

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Statutes. See § 775.082(9)(a)1., Fla. Stat. (2012) (defining a PRR as a defendant

who commits or attempts to commit one of the enumerated offenses—which do not

include false imprisonment or felony battery—within three years of being released

from prison); Lamb v. State, 32 So. 3d 117, 119 (Fla. 2d DCA 2009) (concluding

that false imprisonment does not qualify for PRR sentencing because it is not a listed

offense under the PRR statute and its elements do not necessarily involve the use or

threat of physical force or violence); Johns v. State, 971 So. 2d 271, 272 (Fla. 1st

DCA 2008) (concluding that a PRR designation is improper for a felony battery

conviction under section 784.03(2), Florida Statutes, because that statute merely

reclassifies simple battery as a felony battery based on a prior battery

conviction); see also Sheffield v. State, 177 So. 3d 699, 700 (Fla. 1st DCA 2015)

(concluding that the appellant’s PRR sentence for possession of cocaine was illegal

because that offense is not an enumerated offense under the PRR statute and does

not involve the use or threat of physical force).

      Moreover, “[t]his 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). Thus, we prohibit the rescission of jail credit, even when it

was awarded in error. Davis v. State, 63 So. 3d 847, 847 (Fla. 1st DCA 2011); see

also Harris v. State, 74 So. 3d 1099 (Fla. 1st DCA 2011) (reversing and remanding

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for the reinstatement of jail credit that was improperly rescinded); Palmer v. State,

22 So. 3d 795, 797 (Fla. 1st DCA 2009) (“Jail credit cannot be rescinded after it has

been awarded, even if the award was made in error.”); Stang v. State, 24 So. 3d 566,

570 (Fla. 2d DCA 2009) (“[A] trial court may not rescind jail credit that was

previously awarded, even if the initial award was improper, because such an action

violates double jeopardy.”); Wheeler v. State, 880 So. 2d 1260, 1261 (Fla. 1st DCA

2004) (explaining that “[a] trial court may not sua sponte rescind jail credit

previously awarded at any time even if the initial award was improper” because the

rescission of previously awarded jail credit is an illegal sentence enhancement that

violates the prohibition against double jeopardy). But see Gallinat v. State, 941 So.

2d 1237, 1239 (Fla. 5th DCA 2006) (recognizing “precedent from both the First and

Second Districts holding 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,” but rejecting that position because “[i]n our

view, [] correcting an erroneous jail credit calculation in no way increases the

sentence imposed. With a few exceptions, . . . the question is simply a factual one of

how much of the imposed sentence a defendant has already served”).

      Therefore, as the State properly concedes, the trial court erred by sentencing

Appellant as a PRR on Counts 1 and 2 because false imprisonment and felony battery

do not qualify for PRR sentencing. Additionally, the trial court erred by rescinding

                                          4
the previously awarded 861 days of jail credit on Counts 2 and 3. Accordingly, we

affirm Appellant’s convictions, but reverse his sentences and remand for

resentencing consistent with this opinion.

      AFFIRMED in part, REVERSED in part, and REMANDED.

WOLF, LEWIS, and OSTERHAUS, JJ., CONCUR.




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