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Five Florida Cases Remanded for Award of Jail or Prison Credits
Florida's Second and Fifth District Courts of Appeals have remanded five separate cases for the award of jail or prison credit. Each case was filed under Florida Rules of Criminal Procedure 3.800(a) alleging illegal sentences were imposed for failure to award jail or prison credits they were entitled to.
In the first case, Florida prisoner Connie C. Thomas claimed her sentence was illegal because she was entitled to credit for an additional 32 days spent in the Hillsborough County Jail and 135 days spent in the Pinellas and Hillsborough County jails. Thomas was sentenced to two years in prison after she violated her probation.
Florida's Second District Court of Appeals held Thomas was not entitled to the 32 days credit because this time was included in the thirty-five days of jail credit she had already received. Turning to the 135 days credit claim, the Court said that a defendant is not entitled to jail credit for time spent on detainer in another county's jail on unrelated charges. Thomas, however, was actually arrested in Pinellas County for violation of probation on a Hillsborough warrant. The matter was remanded to award credit or to attach records to prove Thomas was on a detainer. See: Thomas v. Florida, 863 So.2d 1277 (Fla. 2nd DCA 2004).
In another case, the Second District held that a trial court could not rescind jail credit previously awarded even if the initial award was improper. Enrique Lebron a/k/a/ Ricky Sosa was awarded 344 days jail credit. One month later, the trial court sua sponte amended" the judgment and sentence and issued a clerk's certificate showing only 96 days of jail credit. The Second District said the amendment was patent[ly] illegal [ ]." The matter was remanded to award Lebron 344 days jail credit. See: Lebron v. Florida, 870 So.2d 165 (Fla. 2nd DCA 2004).
In the final jail credit case, Bobby Washington alleged he was entitled to 253 days jail credit, but was only awarded 137 days credit. Washington was sentenced to concurrent two-year prison sentences in three separate trial court cases, including the present case. In denying relief, the trial court held, correctly, that a defendant who is arrested for different offenses on different dates is not entitled to have jail credit applied equally to all prison sentences even though the sentences are run concurrently. The Second District reversed, however, because Washington's motion alleged court records, such as the sheriff's jail log, would show he was entitled to 253 days credit. See: Washington v. Florida, 873 So.2d 609 (Fla. 2nd DCA 2004).
The final two cases alleged illegal sentences for the failure to award credit for time previously served in prison. Bradley Newman and Michael Scott entered pleas for which they received prison sentences followed by probationary sentences. Upon release from prison, both violated probation and were resentenced to prison.
Newman alleged he was entitled to 797 days prison credit after the trial court failed to check off the appropriate box on the sentencing forms that awarded that credit. The trial court denied relief, holding Newman must exhaust available administrative remedies with the Florida Department of Corrections (FDOC) and then, if necessary, file a petition for writ of mandamus in circuit court. The Fifth District Court of Appeals held that ruling would be appropriate if the trial court had awarded prison credit. As that credit was not awarded, the matter was remanded to award prison credit. See: Newman v. Florida, 866 So.2d 751 (Fla. 5th DCA 2004).
Michael Scott was not awarded prison credit of 394 days. The Fifth Circuit said that when a defendant is entitled to prison credit, the trial court does not have to calculate the number of days, but must direct FDOC to calculate and apply the prison credit. Scott's case was reversed for the trial court to award prison credit or attach record portions to refute Scott's claim that he was sentenced under a single score sheet to incarceration followed by probation. See: Scott v. Florida, 872 So.2d 1011 (Fla. 5th DCA 2004).""
In the first case, Florida prisoner Connie C. Thomas claimed her sentence was illegal because she was entitled to credit for an additional 32 days spent in the Hillsborough County Jail and 135 days spent in the Pinellas and Hillsborough County jails. Thomas was sentenced to two years in prison after she violated her probation.
Florida's Second District Court of Appeals held Thomas was not entitled to the 32 days credit because this time was included in the thirty-five days of jail credit she had already received. Turning to the 135 days credit claim, the Court said that a defendant is not entitled to jail credit for time spent on detainer in another county's jail on unrelated charges. Thomas, however, was actually arrested in Pinellas County for violation of probation on a Hillsborough warrant. The matter was remanded to award credit or to attach records to prove Thomas was on a detainer. See: Thomas v. Florida, 863 So.2d 1277 (Fla. 2nd DCA 2004).
In another case, the Second District held that a trial court could not rescind jail credit previously awarded even if the initial award was improper. Enrique Lebron a/k/a/ Ricky Sosa was awarded 344 days jail credit. One month later, the trial court sua sponte amended" the judgment and sentence and issued a clerk's certificate showing only 96 days of jail credit. The Second District said the amendment was patent[ly] illegal [ ]." The matter was remanded to award Lebron 344 days jail credit. See: Lebron v. Florida, 870 So.2d 165 (Fla. 2nd DCA 2004).
In the final jail credit case, Bobby Washington alleged he was entitled to 253 days jail credit, but was only awarded 137 days credit. Washington was sentenced to concurrent two-year prison sentences in three separate trial court cases, including the present case. In denying relief, the trial court held, correctly, that a defendant who is arrested for different offenses on different dates is not entitled to have jail credit applied equally to all prison sentences even though the sentences are run concurrently. The Second District reversed, however, because Washington's motion alleged court records, such as the sheriff's jail log, would show he was entitled to 253 days credit. See: Washington v. Florida, 873 So.2d 609 (Fla. 2nd DCA 2004).
The final two cases alleged illegal sentences for the failure to award credit for time previously served in prison. Bradley Newman and Michael Scott entered pleas for which they received prison sentences followed by probationary sentences. Upon release from prison, both violated probation and were resentenced to prison.
Newman alleged he was entitled to 797 days prison credit after the trial court failed to check off the appropriate box on the sentencing forms that awarded that credit. The trial court denied relief, holding Newman must exhaust available administrative remedies with the Florida Department of Corrections (FDOC) and then, if necessary, file a petition for writ of mandamus in circuit court. The Fifth District Court of Appeals held that ruling would be appropriate if the trial court had awarded prison credit. As that credit was not awarded, the matter was remanded to award prison credit. See: Newman v. Florida, 866 So.2d 751 (Fla. 5th DCA 2004).
Michael Scott was not awarded prison credit of 394 days. The Fifth Circuit said that when a defendant is entitled to prison credit, the trial court does not have to calculate the number of days, but must direct FDOC to calculate and apply the prison credit. Scott's case was reversed for the trial court to award prison credit or attach record portions to refute Scott's claim that he was sentenced under a single score sheet to incarceration followed by probation. See: Scott v. Florida, 872 So.2d 1011 (Fla. 5th DCA 2004).""
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Thomas v. Florida
| Year | 2004 |
|---|---|
| Cite | 863 So.2d 1277 (Fla. 2nd DCA 2004) |
| Level | State Court of Appeals |
| Conclusion | Bench Verdict |
| Attorney Fees | 0 |
| Damages | 0 |
| Injunction Status | Granted |
Thomas v. State, 863 So.2d 1277 (Fla.App. Dist.2 01/28/2004)
[1] IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT
[2] CASE No. 2D03-2765
[3] 863 So.2d 1277, 2004.FL.
[4] January 28, 2004
[5] CONNIE L. THOMAS, APPELLANT, v. STATE OF FLORIDA, APPELLEE.
[6] Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Hillsborough County; Chet A. Tharpe, Judge.
[7] The opinion of the court was delivered by: VILLANTI, Judge.
[8] Connie L. Thomas appeals the summary denial of her motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse and remand.
[9] Thomas pleaded guilty to third-degree grand theft on February 2, 2001. She received a suspended sentence of twenty-four months in prison and an additional thirty-six months' probation. Thomas admitted to violation of her probation on May 31, 2002. She was sentenced to two years in prison. In her motion, Thomas claimed her sentence is illegal because she is entitled to additional jail credit for thirty-two days spent in the Hillsborough County jail and 135 days spent in the Pinellas and Hillsborough County jails.
[10] The trial court concluded that Thomas was not entitled to any additional jail credit for time spent in the custody of either county. A review of the record indicates that Thomas is not entitled to additional jail credit for the thirty-two days spent in the Hillsborough County jail from January 5, 2001, through January 6, 2001, and from May 2, 2002, through May 31, 2002, because this time was included in the thirty-five days of jail credit she has already received. Thomas also is not entitled to credit for the time she spent in the Hillsborough County jail after her sentencing on May 31, 2002. See Stokes v. State, 851 So. 2d 788 (Fla. 2d DCA 2003); Tomlinson v. State, 477 So. 2d 30 (Fla. 2d DCA 1985).
[11] In denying her claim for the time spent in the Pinellas County jail, the trial court asserted that Hillsborough County had placed Thomas on a detainer while she was in the Pinellas County jail from March 1, 2002, through May 1, 2002. A defendant is not entitled to jail credit for time spent on detainer in another county's jail on unrelated charges. See Gethers v. State, 838 So. 2d 504 (Fla. 2003). However, the record the trial court attached in support of this assertion does not clearly show Thomas was in the Pinellas County jail on a detainer. Apparently, Thomas was actually arrested in Pinellas County for violation of probation on a Hillsborough County warrant. If Thomas was arrested in Pinellas County at least partially on a Hillsborough County warrant, she is entitled to credit for the sixty-three days spent in the Pinellas County jail. See Young v. State, 840 So. 2d 468 (Fla. 2d DCA 2003); LeBlanc v. State, 839 So. 2d 896 (Fla. 3d DCA 2003).
[12] Nothing in the record clearly refutes Thomas' claim that she was entitled to sixty-three days' jail credit for the time she spent in the Pinellas County jail from May 2, 2002, through May 31, 2002. Accordingly, the trial court should either award Thomas sixty-three days of jail credit or provide portions of the record that adequately reflect that Thomas is not entitled to the credit because she was on detainer while in the Pinellas County jail.
[13] Reversed and remanded.
[14] SALCINES and KELLY, JJ., Concur.
[1] IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT
[2] CASE No. 2D03-2765
[3] 863 So.2d 1277, 2004.FL.
[4] January 28, 2004
[5] CONNIE L. THOMAS, APPELLANT, v. STATE OF FLORIDA, APPELLEE.
[6] Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Hillsborough County; Chet A. Tharpe, Judge.
[7] The opinion of the court was delivered by: VILLANTI, Judge.
[8] Connie L. Thomas appeals the summary denial of her motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse and remand.
[9] Thomas pleaded guilty to third-degree grand theft on February 2, 2001. She received a suspended sentence of twenty-four months in prison and an additional thirty-six months' probation. Thomas admitted to violation of her probation on May 31, 2002. She was sentenced to two years in prison. In her motion, Thomas claimed her sentence is illegal because she is entitled to additional jail credit for thirty-two days spent in the Hillsborough County jail and 135 days spent in the Pinellas and Hillsborough County jails.
[10] The trial court concluded that Thomas was not entitled to any additional jail credit for time spent in the custody of either county. A review of the record indicates that Thomas is not entitled to additional jail credit for the thirty-two days spent in the Hillsborough County jail from January 5, 2001, through January 6, 2001, and from May 2, 2002, through May 31, 2002, because this time was included in the thirty-five days of jail credit she has already received. Thomas also is not entitled to credit for the time she spent in the Hillsborough County jail after her sentencing on May 31, 2002. See Stokes v. State, 851 So. 2d 788 (Fla. 2d DCA 2003); Tomlinson v. State, 477 So. 2d 30 (Fla. 2d DCA 1985).
[11] In denying her claim for the time spent in the Pinellas County jail, the trial court asserted that Hillsborough County had placed Thomas on a detainer while she was in the Pinellas County jail from March 1, 2002, through May 1, 2002. A defendant is not entitled to jail credit for time spent on detainer in another county's jail on unrelated charges. See Gethers v. State, 838 So. 2d 504 (Fla. 2003). However, the record the trial court attached in support of this assertion does not clearly show Thomas was in the Pinellas County jail on a detainer. Apparently, Thomas was actually arrested in Pinellas County for violation of probation on a Hillsborough County warrant. If Thomas was arrested in Pinellas County at least partially on a Hillsborough County warrant, she is entitled to credit for the sixty-three days spent in the Pinellas County jail. See Young v. State, 840 So. 2d 468 (Fla. 2d DCA 2003); LeBlanc v. State, 839 So. 2d 896 (Fla. 3d DCA 2003).
[12] Nothing in the record clearly refutes Thomas' claim that she was entitled to sixty-three days' jail credit for the time she spent in the Pinellas County jail from May 2, 2002, through May 31, 2002. Accordingly, the trial court should either award Thomas sixty-three days of jail credit or provide portions of the record that adequately reflect that Thomas is not entitled to the credit because she was on detainer while in the Pinellas County jail.
[13] Reversed and remanded.
[14] SALCINES and KELLY, JJ., Concur.
Lebron v. Florida
| Year | 2004 |
|---|---|
| Cite | 870 So.2d 165 (Fla. 2nd DCA 2004). |
| Level | State Court of Appeals |
| Attorney Fees | 0 |
| Damages | 0 |
| Injunction Status | N/A |
870 So.2d 165, 29 Fla. L. Weekly D311
District Court of Appeal of Florida, Second District.
Enrique LEBRON a/k/a Ricky Sosa, Appellant,
v.
STATE of Florida, Appellee.
Nos. 2D02-5589, 2D02-5590.
Jan. 28, 2004.
Background: Defendant who was sentenced to 12 years in prison after his probation was revoked filed motion to correct illegal sentence. The Circuit
Court, Hillsborough County, Daniel L. Perry, J., denied the motion. Defendant appealed.
Holding: The District Court of Appeal, Villanti, J., held that trial court could not rescind previously awarded jail credit.
Affirmed, but remanded.
*165 VILLANTI, Judge.
Enrique Lebron, a/k/a Ricky Sosa, appeals the denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). While we affirm the denial of the claims raised in Lebron's motion, we note that there is apparently a lingering discrepancy in the Department of Corrections' records concerning the judgments under which Lebron is incarcerated. The record shows that Lebron's probation was revoked and he was sentenced to twelve years in prison in case number 91-10877 only. Therefore, to the extent that the Department of Corrections' records show that Lebron is also currently incarcerated for the charges in case number 91-10505, those records are incorrect. We note that the trial court ordered the State to issue new commitment papers to ensure that this discrepancy was corrected; however, no such papers appear in our record. On remand, the State must ensure that this has been accomplished.
In addition, this court's review of the record has revealed a patent illegality in Lebron's sentence that requires correction. [FN1] When Lebron was sentenced on the revocation of probation in case number 91-10877, he was awarded 344 days of jail credit. One month later, the trial court sua sponte "amended" the judgment and sentence and issued a clerk's certificate showing only 96 days of jail credit. However, this court has repeatedly held that a trial court may not rescind jail credit previously awarded even if the initial award was improper. See, e.g., Platt v. State, 827 So.2d 1064 (Fla. 2d DCA 2002); Bailey v. State, 777 So.2d 995 (Fla. 2d DCA 2000); Linton v. State, 702 So.2d 236 (Fla. 2d DCA 1997). Accordingly, we remand this case to the trial court for it to correct the judgment and sentence and the clerk's certificate to reflect the 344 days of jail credit initially awarded.
FN1. Lebron raised this issue in the trial court by way of a "motion to clarify award of jail credits." The trial court granted this motion and issued an order stating that the 96 days of jail credit were correct. Lebron did not appeal from this order. If we do not address this error, Lebron could file a renewed motion to correct illegal sentence in the trial court, which would not be deemed successive. See State v. McBride, 848 So.2d 287 (Fla.2003). However, because Lebron would be entitled to release in January 2004 if his jail credits are corrected, we address this patent illegality in this opinion.
*166 Affirmed, but remanded for correction of jail credits.
SALCINES and KELLY, JJ., Concur.
870 So.2d 165, 29 Fla. L. Weekly D311
END OF DOCUMENT
District Court of Appeal of Florida, Second District.
Enrique LEBRON a/k/a Ricky Sosa, Appellant,
v.
STATE of Florida, Appellee.
Nos. 2D02-5589, 2D02-5590.
Jan. 28, 2004.
Background: Defendant who was sentenced to 12 years in prison after his probation was revoked filed motion to correct illegal sentence. The Circuit
Court, Hillsborough County, Daniel L. Perry, J., denied the motion. Defendant appealed.
Holding: The District Court of Appeal, Villanti, J., held that trial court could not rescind previously awarded jail credit.
Affirmed, but remanded.
*165 VILLANTI, Judge.
Enrique Lebron, a/k/a Ricky Sosa, appeals the denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). While we affirm the denial of the claims raised in Lebron's motion, we note that there is apparently a lingering discrepancy in the Department of Corrections' records concerning the judgments under which Lebron is incarcerated. The record shows that Lebron's probation was revoked and he was sentenced to twelve years in prison in case number 91-10877 only. Therefore, to the extent that the Department of Corrections' records show that Lebron is also currently incarcerated for the charges in case number 91-10505, those records are incorrect. We note that the trial court ordered the State to issue new commitment papers to ensure that this discrepancy was corrected; however, no such papers appear in our record. On remand, the State must ensure that this has been accomplished.
In addition, this court's review of the record has revealed a patent illegality in Lebron's sentence that requires correction. [FN1] When Lebron was sentenced on the revocation of probation in case number 91-10877, he was awarded 344 days of jail credit. One month later, the trial court sua sponte "amended" the judgment and sentence and issued a clerk's certificate showing only 96 days of jail credit. However, this court has repeatedly held that a trial court may not rescind jail credit previously awarded even if the initial award was improper. See, e.g., Platt v. State, 827 So.2d 1064 (Fla. 2d DCA 2002); Bailey v. State, 777 So.2d 995 (Fla. 2d DCA 2000); Linton v. State, 702 So.2d 236 (Fla. 2d DCA 1997). Accordingly, we remand this case to the trial court for it to correct the judgment and sentence and the clerk's certificate to reflect the 344 days of jail credit initially awarded.
FN1. Lebron raised this issue in the trial court by way of a "motion to clarify award of jail credits." The trial court granted this motion and issued an order stating that the 96 days of jail credit were correct. Lebron did not appeal from this order. If we do not address this error, Lebron could file a renewed motion to correct illegal sentence in the trial court, which would not be deemed successive. See State v. McBride, 848 So.2d 287 (Fla.2003). However, because Lebron would be entitled to release in January 2004 if his jail credits are corrected, we address this patent illegality in this opinion.
*166 Affirmed, but remanded for correction of jail credits.
SALCINES and KELLY, JJ., Concur.
870 So.2d 165, 29 Fla. L. Weekly D311
END OF DOCUMENT
Washington v. Florida
| Year | 2004 |
|---|---|
| Cite | 873 So.2d 609 (Fla. 2nd DCA 2004). |
| Level | State Court of Appeals |
| Attorney Fees | 0 |
| Damages | 0 |
| Injunction Status | N/A |
873 So.2d 609, 29 Fla. L. Weekly D1292
District Court of Appeal of Florida, Second District.
Bobby WASHINGTON, Appellant,
v.
STATE of Florida, Appellee.
No. 2D04-175.
May 28, 2004.
Background: Inmate filed motion for jail credit. The Circuit Court, Hendry County, G. Keith Cary, J., denied motion, and inmate appealed.
Holding: The District Court of Appeal held that: state failed conclusively to refute inmate's claim of entitlement to additional jail credit.
Reversed and remanded.
*610 PER CURIAM.
Bobby Washington challenges the order of the trial court denying his motion for jail credit filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Because the trial court did not attach portions of the trial court record that conclusively refute Washington's facially sufficient claim for relief, we reverse the order of the trial court and remand for further proceedings.
In his motion, Washington alleged that he was only awarded 137 days' credit against his prison sentence for the time he spent in jail prior to sentencing on trial court case number 02-569 when he should have been awarded 253 days' credit. He further alleged that the trial court records, on their face, demonstrate an entitlement to relief. Washington presented a facially sufficient rule 3.800(a) jail credit claim. See State v. Mancino, 714 So.2d 429, 433 (Fla.1998). The trial court denied relief on this claim, attaching the response of the State to its order to show cause why Washington should not be entitled to relief. In its response, the State noted that Washington was sentenced on the same day to concurrent two-year prison sentences in three separate trial court cases, including the present case. Because Washington alleged that the failure to award the correct amount of jail credit was a violation of his plea agreement, the State interpreted Washington's motion as alleging that, because he was sentenced concurrently in all cases, he was entitled to the same amount of jail credit in trial court case number 02-569 as was awarded in trial court case number 02-393 even though he spent less time in jail in case number 02-569. The State was correct in determining that a defendant who is arrested for different offenses on different dates is not entitled to have jail credit applied equally to all prison sentences even though the sentences are run concurrently. See Dennis v. State, 754 So.2d 857, 858 (Fla. 3d DCA 2000). However, the State's interpretation of Washington's claim is only a possible interpretation and, as noted, Washington stated a facially sufficient claim that the trial court records would show that he was entitled to 253 days' credit.
Accordingly, we reverse the order of the trial court. On remand, if the trial court again denies this claim, it shall attach those record documents, such as the sheriff's jail log, which conclusively refute the claim. See Whitt v. State, 807 So.2d 788 (Fla. 2d DCA 2002).
Reversed and remanded.
STRINGER, COVINGTON, and WALLACE, JJ., Concur.
873 So.2d 609, 29 Fla. L. Weekly D1292
END OF DOCUMENT
District Court of Appeal of Florida, Second District.
Bobby WASHINGTON, Appellant,
v.
STATE of Florida, Appellee.
No. 2D04-175.
May 28, 2004.
Background: Inmate filed motion for jail credit. The Circuit Court, Hendry County, G. Keith Cary, J., denied motion, and inmate appealed.
Holding: The District Court of Appeal held that: state failed conclusively to refute inmate's claim of entitlement to additional jail credit.
Reversed and remanded.
*610 PER CURIAM.
Bobby Washington challenges the order of the trial court denying his motion for jail credit filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Because the trial court did not attach portions of the trial court record that conclusively refute Washington's facially sufficient claim for relief, we reverse the order of the trial court and remand for further proceedings.
In his motion, Washington alleged that he was only awarded 137 days' credit against his prison sentence for the time he spent in jail prior to sentencing on trial court case number 02-569 when he should have been awarded 253 days' credit. He further alleged that the trial court records, on their face, demonstrate an entitlement to relief. Washington presented a facially sufficient rule 3.800(a) jail credit claim. See State v. Mancino, 714 So.2d 429, 433 (Fla.1998). The trial court denied relief on this claim, attaching the response of the State to its order to show cause why Washington should not be entitled to relief. In its response, the State noted that Washington was sentenced on the same day to concurrent two-year prison sentences in three separate trial court cases, including the present case. Because Washington alleged that the failure to award the correct amount of jail credit was a violation of his plea agreement, the State interpreted Washington's motion as alleging that, because he was sentenced concurrently in all cases, he was entitled to the same amount of jail credit in trial court case number 02-569 as was awarded in trial court case number 02-393 even though he spent less time in jail in case number 02-569. The State was correct in determining that a defendant who is arrested for different offenses on different dates is not entitled to have jail credit applied equally to all prison sentences even though the sentences are run concurrently. See Dennis v. State, 754 So.2d 857, 858 (Fla. 3d DCA 2000). However, the State's interpretation of Washington's claim is only a possible interpretation and, as noted, Washington stated a facially sufficient claim that the trial court records would show that he was entitled to 253 days' credit.
Accordingly, we reverse the order of the trial court. On remand, if the trial court again denies this claim, it shall attach those record documents, such as the sheriff's jail log, which conclusively refute the claim. See Whitt v. State, 807 So.2d 788 (Fla. 2d DCA 2002).
Reversed and remanded.
STRINGER, COVINGTON, and WALLACE, JJ., Concur.
873 So.2d 609, 29 Fla. L. Weekly D1292
END OF DOCUMENT
Newman v. Florida
| Year | 2004 |
|---|---|
| Cite | 866 So.2d 751 (Fla. 5th DCA 2004). |
| Level | State Court of Appeals |
| Attorney Fees | 0 |
| Damages | 0 |
| Injunction Status | N/A |
866 So.2d 751, 29 Fla. L. Weekly D410
District Court of Appeal of Florida, Fifth District.
Bradley NEWMAN, Appellant,
v.
STATE of Florida, Appellee.
No. 5D03-3861.
Feb. 13, 2004.
Background: Defendant whose probation was revoked, and who was denied prison credit for time physically spent in prison prior to his violation of probation, filed motion to correct sentence. The Circuit Court, Volusia County, Joseph G. Will, J., denied the motion. Defendant appealed.
Holding: The District Court of Appeal, Peterson, J., held that defendant was not required to exhaust his administrative remedies before filing motion to correct sentence.
Reversed and remanded.
*751 Bradley Newman, Punta Gorda, pro se.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
PETERSON, J.
Bradley Newman appeals the denial of his Florida Rules of Criminal Procedure 3.800(a) motion seeking additional jail and prison credit. He originally received concurrent probationary split sentences of three years in prison followed by three years probation after entering a no contest plea to two counts of robbery. Newman completed the incarceration portion of his sentence, but violated the conditions of his probation. The trial court revoked his *752 probation and re-sentenced him to four years in prison. We find merit only in the appeal of the trial court's denial of prison credit.
Newman complains that the trial court failed to check off the appropriate box on the sentencing forms that would have awarded credit for time previously served in prison. He claims that he is entitled to 791 days of prison credit for the time he "physically spent" in prison prior to his violation of probation. The assistant state attorney candidly advised the trial court that Newman was entitled to that credit, but the trial court denied relief reasoning that Newman's claim was premature citing Rood v. State, 790 So.2d 1192 (Fla. 1st DCA 2001). Rood held that when the Department of Corrections fails to credit a prisoner with prison time awarded by the trial court, the prisoner must first exhaust the available administrative remedies and then, if necessary, file a petition for writ of mandamus in the circuit court. However, in Rood, unlike in the instant case, there was no claim that the trial court failed to award prison credit. The Rood complaint was that the Department of Corrections failed to credit the prison time.
Andrews v. State, 822 So.2d 540 (Fla. 2d DCA 2002), dealt with almost identical circumstances, including the denial of a 3.800(a) motion. Andrews alleged that the trial court failed to award prison credit because the boxes labeled "prison credit" on the sentences were left blank. The Second District Court of Appeal reversed and remanded with instructions to the trial court to exercise its responsibility to place a check in the appropriate box concerning prison credit. See also Downing v. State, 779 So.2d 562, 563 (Fla. 2d DCA 2001); Thistle v. State, 769 So.2d 1149 (Fla. 5th DCA 2000) ("Although it is permissible for the trial court to delegate to [the Department of Corrections] the administrative task of calculating the amount of prison credit which is due, it is the trial court's responsibility to order that such credit be provided.").
Newman's request of credit for jail time is denied, but we reverse and instruct the trial court on remand to order that prison credit be provided.
REVERSED and REMANDED.
SHARP, W. and GRIFFIN, JJ., concur.
866 So.2d 751, 29 Fla. L. Weekly D410
END OF DOCUMENT
District Court of Appeal of Florida, Fifth District.
Bradley NEWMAN, Appellant,
v.
STATE of Florida, Appellee.
No. 5D03-3861.
Feb. 13, 2004.
Background: Defendant whose probation was revoked, and who was denied prison credit for time physically spent in prison prior to his violation of probation, filed motion to correct sentence. The Circuit Court, Volusia County, Joseph G. Will, J., denied the motion. Defendant appealed.
Holding: The District Court of Appeal, Peterson, J., held that defendant was not required to exhaust his administrative remedies before filing motion to correct sentence.
Reversed and remanded.
*751 Bradley Newman, Punta Gorda, pro se.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
PETERSON, J.
Bradley Newman appeals the denial of his Florida Rules of Criminal Procedure 3.800(a) motion seeking additional jail and prison credit. He originally received concurrent probationary split sentences of three years in prison followed by three years probation after entering a no contest plea to two counts of robbery. Newman completed the incarceration portion of his sentence, but violated the conditions of his probation. The trial court revoked his *752 probation and re-sentenced him to four years in prison. We find merit only in the appeal of the trial court's denial of prison credit.
Newman complains that the trial court failed to check off the appropriate box on the sentencing forms that would have awarded credit for time previously served in prison. He claims that he is entitled to 791 days of prison credit for the time he "physically spent" in prison prior to his violation of probation. The assistant state attorney candidly advised the trial court that Newman was entitled to that credit, but the trial court denied relief reasoning that Newman's claim was premature citing Rood v. State, 790 So.2d 1192 (Fla. 1st DCA 2001). Rood held that when the Department of Corrections fails to credit a prisoner with prison time awarded by the trial court, the prisoner must first exhaust the available administrative remedies and then, if necessary, file a petition for writ of mandamus in the circuit court. However, in Rood, unlike in the instant case, there was no claim that the trial court failed to award prison credit. The Rood complaint was that the Department of Corrections failed to credit the prison time.
Andrews v. State, 822 So.2d 540 (Fla. 2d DCA 2002), dealt with almost identical circumstances, including the denial of a 3.800(a) motion. Andrews alleged that the trial court failed to award prison credit because the boxes labeled "prison credit" on the sentences were left blank. The Second District Court of Appeal reversed and remanded with instructions to the trial court to exercise its responsibility to place a check in the appropriate box concerning prison credit. See also Downing v. State, 779 So.2d 562, 563 (Fla. 2d DCA 2001); Thistle v. State, 769 So.2d 1149 (Fla. 5th DCA 2000) ("Although it is permissible for the trial court to delegate to [the Department of Corrections] the administrative task of calculating the amount of prison credit which is due, it is the trial court's responsibility to order that such credit be provided.").
Newman's request of credit for jail time is denied, but we reverse and instruct the trial court on remand to order that prison credit be provided.
REVERSED and REMANDED.
SHARP, W. and GRIFFIN, JJ., concur.
866 So.2d 751, 29 Fla. L. Weekly D410
END OF DOCUMENT
Scott v. Florida
| Year | 2004 |
|---|---|
| Cite | 872 So.2d 1011 (Fla.5th DCA 2004). |
| Level | State Court of Appeals |
| Attorney Fees | 0 |
| Damages | 0 |
| Injunction Status | N/A |
872 So.2d 1011, 29 Fla. L. Weekly D1167
District Court of Appeal of Florida, Fifth District.
Michael SCOTT, Appellant,
v.
STATE of Florida, Appellee.
No. 5D04-421.
May 14, 2004.
Background: Following his criminal convictions, movant filed motion to correct sentence. The Circuit Court, Volusia County, Joseph G. Will, J., summarily denied motion, and movant appealed.
Holding: The District Court of Appeal held that movant was entitled to hearing on his claim that he was entitled to prison credit.
Reversed and remanded.
*1012 Michael Scott, Mayo, pro se.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee.
PER CURIAM.
Michael Scott appeals the summary denial of his motion to correct sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Scott alleges that he was sentenced at the same time for several cases in Volusia County. He received terms of incarceration in three of these cases, to be followed by a term of probation in Case No. 95-31957. Scott completed his terms of incarceration and was released to begin serving his term of probation. In May 2003, Scott's probation was revoked and he was sentenced to 31.2 months' incarceration, with jail credit in the amount of 394 days.
Scott claims that he did not receive prison credit for the time served on the other cases. Scott cites Tripp v. State, 622 So.2d 941 (Fla.1993), where the Florida Supreme Court held that when a trial court sentences a defendant under a single scoresheet to incarceration for one offense followed by probation for a second offense, prison credit for time served on the first offense must be awarded against the sentence imposed on the second offense after revocation of probation. See also State v. Witherspoon, 810 So.2d 871 (Fla.2002).
The trial court, in denying relief, stated only that Scott had received jail credit in the amount of 394 days and would not be entitled to additional jail credit. However, this leaves open the question of whether Scott is entitled to prison credit. When a defendant is entitled to prison credit, the trial court does not have to calculate the number of days, but must direct DOC to calculate and apply the prison credit. See Newman v. State, 866 So.2d 751 (Fla. 5th DCA 2004). The written sentence, attached to the order denying relief, makes no provision for prison credit. Moreover, the trial court did not check the box which authorizes DOC to compute and apply credit for time served in state prison.
This claim for additional prison credit may properly be raised in a 3.800(a) motion. Id.; see also *1013Burnett v. State, 745 So.2d 1043 (Fla. 2d DCA 1999). We therefore reverse the order denying relief and remand the case to the trial court for reconsideration. If Scott is entitled to prison credit, the trial court should make that notation in the written sentence. Otherwise, the trial court must attach portions of the record refuting Scott's allegation that he was sentenced under a single scoresheet to incarceration followed by probation in several cases, or otherwise demonstrate that Tripp is inapplicable. See Weigle v. State, 789 So.2d 1217 (Fla. 5th DCA 2001).
REVERSED and REMANDED.
SAWAYA, C.J., PALMER and TORPY, JJ., concur.
872 So.2d 1011, 29 Fla. L. Weekly D1167
END OF DOCUMENT
District Court of Appeal of Florida, Fifth District.
Michael SCOTT, Appellant,
v.
STATE of Florida, Appellee.
No. 5D04-421.
May 14, 2004.
Background: Following his criminal convictions, movant filed motion to correct sentence. The Circuit Court, Volusia County, Joseph G. Will, J., summarily denied motion, and movant appealed.
Holding: The District Court of Appeal held that movant was entitled to hearing on his claim that he was entitled to prison credit.
Reversed and remanded.
*1012 Michael Scott, Mayo, pro se.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee.
PER CURIAM.
Michael Scott appeals the summary denial of his motion to correct sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Scott alleges that he was sentenced at the same time for several cases in Volusia County. He received terms of incarceration in three of these cases, to be followed by a term of probation in Case No. 95-31957. Scott completed his terms of incarceration and was released to begin serving his term of probation. In May 2003, Scott's probation was revoked and he was sentenced to 31.2 months' incarceration, with jail credit in the amount of 394 days.
Scott claims that he did not receive prison credit for the time served on the other cases. Scott cites Tripp v. State, 622 So.2d 941 (Fla.1993), where the Florida Supreme Court held that when a trial court sentences a defendant under a single scoresheet to incarceration for one offense followed by probation for a second offense, prison credit for time served on the first offense must be awarded against the sentence imposed on the second offense after revocation of probation. See also State v. Witherspoon, 810 So.2d 871 (Fla.2002).
The trial court, in denying relief, stated only that Scott had received jail credit in the amount of 394 days and would not be entitled to additional jail credit. However, this leaves open the question of whether Scott is entitled to prison credit. When a defendant is entitled to prison credit, the trial court does not have to calculate the number of days, but must direct DOC to calculate and apply the prison credit. See Newman v. State, 866 So.2d 751 (Fla. 5th DCA 2004). The written sentence, attached to the order denying relief, makes no provision for prison credit. Moreover, the trial court did not check the box which authorizes DOC to compute and apply credit for time served in state prison.
This claim for additional prison credit may properly be raised in a 3.800(a) motion. Id.; see also *1013Burnett v. State, 745 So.2d 1043 (Fla. 2d DCA 1999). We therefore reverse the order denying relief and remand the case to the trial court for reconsideration. If Scott is entitled to prison credit, the trial court should make that notation in the written sentence. Otherwise, the trial court must attach portions of the record refuting Scott's allegation that he was sentenced under a single scoresheet to incarceration followed by probation in several cases, or otherwise demonstrate that Tripp is inapplicable. See Weigle v. State, 789 So.2d 1217 (Fla. 5th DCA 2001).
REVERSED and REMANDED.
SAWAYA, C.J., PALMER and TORPY, JJ., concur.
872 So.2d 1011, 29 Fla. L. Weekly D1167
END OF DOCUMENT