February 12, 1993.
Appeal from the Circuit Court for Orange County, James C. Hauser, J.
James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Daytona Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Myra J. Fried, Asst. Atty. Gen., Daytona Beach, for appellee.
While Wayne Stevenson was being sentenced to fifteen years' incarceration after having violated the terms of his probation, an issue arose as to whether he would be allowed credit for only actual time previously served or for all time, including gain time. He had originally been sentenced to five years in prison followed by fifteen years' probation. Having served the prison time with credits for gain time, he was under restraint pursuant to the terms of probation when he violated those terms.
The trial court's written sentence, entered after a finding of violation of probation, indicated that Stevenson should be allowed total credit for his prior incarceration and gain time, but stated in a recommendation to the Department of Corrections: "In imposing the above sentence the court further recommends forfeit [sic] good and gain time received on initial sentence [sic] to be given time served for only actual time served."
The state concedes that section 948.06(6), Florida Statutes (1989), is not applicable to this case since Stevenson's crime and sentencing predate the enactment of the statute. The statute deems violation of probation to be a forfeiture of all gain time or commutation time for good conduct. The state also concedes that Stevenson cannot lose his accrued gain time based upon his violation of probation. State v. Green, 547 So.2d 925 (Fla. 1989); Thomas v. State, 605 So.2d 1286 (Fla. 4th DCA 1992); Barfield v. State, 599 So.2d 259 (Fla. 4th DCA 1992); Kilgore v. State, 597 So.2d 970 (Fla. 3d DCA 1992).
The state disagrees, however, that the sentence in the instant case requires correction since the trial court's order only recommends and does not require forfeiture of gain time. We disagree. It is a function of the trial court to award the proper amount of jail time credit. Wilson v. State, 603 So.2d 93 (Fla. 5th DCA 1992). The trial court's recommendation conflicts with the proper sentence imposed.
We vacate the trial court's sentence and remand for correction of the sentence to reflect the proper amount of gain time to be credited.
Sentence VACATED; REMANDED.
COBB, W. SHARP and PETERSON, JJ., concur.