5D09-3176 Brady Johnson v. State

State: Florida

Court: Florida Fifth District Court

Docket No: 5D09-3176

Case Date: 05/03/2010

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2010

BRADY JOHNSON, Appellant, v. STATE OF FLORIDA, Appellee. ________________________________/ Opinion filed May 7, 2010 Appeal from the Circuit Court for Sumter County, William H. Hallman, III, Judge. Brady Johnson, Bushnell, pro se. Bill McCollum, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellee. Case No. 5D09-3176

COHEN, J. Brady Johnson appeals the denial of his petition for writ of habeas corpus. Based upon a lack of a record, we affirm without prejudice to Johnson renewing his request. Johnson claims entitlement to release pursuant to McNeil v. Canty, 12 So. 3d 215 (Fla. 2009), where the supreme court held that the Department of Corrections, "upon revocation of conditional release, must retroactively credit prison time served on

any concurrent sentence as prison time served on all concurrent sentences." Canty, 12 So. 3d at 217 (citations omitted). The court prohibited the serving of a greater sentence than originally imposed. As the trial court correctly pointed out, Johnson did not show that he exhausted his administrative remedies through the Department of Corrections, Davis v. State, 943 So. 2d 975 (Fla. 5th DCA 2006), or that the recalculation of his release date following revocation of his conditional release resulted in an incarceration exceeding that imposed by the sentencing judge. AFFIRMED without prejudice. GRIFFIN and ORFINGER, JJ., concur.

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