         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
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

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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).

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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).
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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
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     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)).

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