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State v. Fortuny3/8/2002
he superior court
Fortuny resided at Genesis House from February 20, 2000 through June 20, 2000. However, no court order obliged him to reside there until April 4th. As we have explained in this opinion, we conclude that Fortuny is not entitled to Nygren credit for the first 43 days of his stay (February 20th through April 3rd), but we also conclude that Fortuny is entitled to full Nygren credit for the remainder of his stay (April 4th through June 20th) - a total of 78 days.
This total is 15 days less than the 93 days of Nygren credit that Judge Card calculated. This 15-day difference prompts us to remand Fortuny's case to the superior court so that Judge Card can have an opportunity to reconsider Fortuny's sentence.
Fortuny's composite sentence was 30 months with 25 months suspended - i.e., 5 months to serve. But Judge Card believed that Fortuny had already served 93 days of this 150-day sentence. Because the length of Fortuny's sentence (150 days to serve) is not much greater than Fortuny's credit for time served (under Judge Card's calculation), it is possible that Judge Card imposed 5 months to serve in tacit reliance on the assumption that Fortuny had 93 days of Nygren credit, and that Fortuny would therefore spend less than 2 additional months in jail.
Fortuny does not have 93 days of Nygren credit; he has only 78 days. Because this difference of 15 days in the Nygren calculation might make a difference in Judge Card's sentencing decision, we REMAND this case to the superior court. If Judge Card was relying on the figure of 93 days when he sentenced Fortuny to serve 5 months in jail, the judge now has the discretion to reduce Fortuny's time to serve.
We do not retain jurisdiction of Fortuny's case.
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