Gourley v. State , 432 So. 2d 755 ( 1983 )

432 So.2d 755 (1983)

Richard Earl GOURLEY, Appellant,
v.
STATE of Florida, Appellee.

No. 82-1326.

District Court of Appeal of Florida, Fifth District.

June 9, 1983.

James B. Gibson, Public Defender, and Michael S. Becker, Asst. Public Defender, Daytona Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellee.

COWART, Judge.

The 1973 amendment to section 921.161, Florida Statutes (1981), making credit for jail time served prior to sentencing mandatory, whereas it had previously been discretionary, does not affect the legality of the life sentence without jail time credit imposed on appellant in 1972 for a crime previously committed. Article X, section 9 of the Constitution of the State of Florida provides, "repeal or amendment of a criminal statute shall not affect prosecution or punishment for any crime previously committed." Sentencing statutes in effect at the time of the commission of the crime control the legality of a sentence. Castle v. State, 330 So.2d 10 (Fla. 1976); Strachen v. State, 380 So.2d 487 (Fla. 3d DCA 1980). Appellant cites Hollingshead v. State, 292 So.2d 617 (Fla. 1st DCA 1974), and Joins v. State, 287 So.2d 742 (Fla. 1st DCA 1974). In those cases the First District Court of Appeal did not consider the constitutional provision cited above and we decline to follow those cases.

Gourley's conviction and sentence are again^[1]

AFFIRMED.

DAUKSCH and SHARP, JJ., concur.

NOTES

[1] See Gourley v. State, 285 So.2d 40 (Fla. 4th DCA 1973); Gourley v. State, 411 So.2d 412 (Fla. 5th DCA 1981).