final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court for Duval County. Bruce
Cummings, pro se, Appellant.
Moody, Attorney General, and Daniel Krumbholz, Assistant
Attorney General, Tallahassee, for Appellee.
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.
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.
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
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).
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 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).
response to this Court's Toler order,
 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.
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).
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
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 ...