ROBERT LEE FENN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Robert Lee Fenn appealed denial of his post-conviction 3.850 motion challenging his separate convictions for burglary and battery and seeking credit for time served before sentencing. The court reversed the trial court's summary denial and remanded for proper consideration of whether Fenn received adequate pre-sentence jail time credit.
The court held that while Fenn's first ground (challenging separate convictions under the defunct single transaction rule) was facially insufficient, his second ground regarding pre-sentence jail time credit required either attachment of file portions refuting the claim or an evidentiary hearing. The trial court's blanket denial without addressing the credit for time served issue was improper.
[1] A post-conviction motion based on the "single transaction" rule is facially insufficient when that rule is no longer valid law.
[2] A defendant is entitled to credit for all time served in jail before sentencing.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Credit for Jail time is Mandatory.”
Establishes that pre-sentence jail time credit is not discretionary but required by law, citing Dixon v. State
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Join FLexlaw to unlock all legal intelligenceFenn was convicted of separate offenses of burglary and battery. He was held in jail from December 13, 1979, to March 13, 1980, on the burglary charge…
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PER CURIAM.
The defendant below, Robert Lee Fenn, filed a post-conviction 3.850 motion after separate convictions of burglary and battery. His first contention is that separate convictions and sentences for these offenses were improper. This contention is based on the now defunct “single transaction” rule; therefore, the motion was facially insufficient and properly denied summarily by the trial court without hearing and without attachment of a copy of that portion of the files and records conclusively showing the prisoner entitled to no relief.
The second ground set forth in the prisoner’s motion, however, relates to a different issue: credit for time served before sentencing. The motion states:
Ground Two, the Defendant contends that the trial court failed to give Defendant sufficient credit for Jail time spent before sentencing from December 13, 1979, to March 13, 1980, in that he was held during that entire time on the charge of Burglary. Credit for Jail time is Mandatory. See, Dixon v. State, 339 So. 2d 688 (Fla.1976) accordingly, the court must enter an order correcting Defendant’s Jail time credit.
The order of the trial court denying the motion in toto reads:
THIS CAUSE having come on to be heard on the 9th day of February, 1982, on defendant’s motion for post-conviction relief under Fla.R.Crim.P. 3.850 and the Court being fully advised in the premises, it is therefore,
ORDERED AND ADJUDGED that the motion is denied because there is no legal or factual basis for granting such relief after examining the file. DONE AND ORDERED at Orlando, Florida this 9th day of February, 1982.
/s/ Joseph P. Baker CIRCUIT JUDGE
The problem, as we perceive it, is that the second ground of the motion is imprecisely worded and while arguably insufficient on its face,1 the trial judge apparently examined some portions of the file (presumably those showing arrest dates and the sentences with reflection of credit given) as a basis for denying the motion.2
Accordingly, this cause is remanded for sixty (60) days in order for the trial court to either (1) attach that portion of the file and record that conclusively refutes Ground Two of Fenn’s motion, or (2) conduct an evidentiary hearing to determine whether Fenn was denied proper credit for time served prior to sentence per section 921.-161(1), Florida Statutes (1981). Brown v. State, 409 So. 2d 129 (Fla. 5th DCA 1982); Van Bever v. State, 405 So. 2d 474 (Fla. 5th DCA 1981); Wade v. State, 402 So. 2d 534 (Fla. 5th DCA 1981); Benton v. State, 401 So. 2d 1114 (Fla. 5th DCA 1981); Stephens v. State, 399 So. 2d 1106 (Fla. 5th DCA 1981).
REMANDED WITH INSTRUCTIONS.
COBB, SHARP and COWART, JJ., concur. . This is arguable because the appellant concedes in his appellate brief that he was credited with 92 days of pre-sentence time — one day more than the period alluded to in the motion he filed with the trial court.
. Since there were two sentences for two crimes, the pre-sentence credit need not be allocated to but one of those sentences. The defendant is not entitled to duplicate credits. Dixon v. State, 339 So. 2d 688 (Fla. 2d DCA 1976).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- VAN Bever v. State, 405 So. 2d 474 (Fla. 5th DCA 1981)
- Brown v. State, 409 So. 2d 129 (Fla. 5th DCA 1982)
- Vino Cato v. State, 401 So. 2d 1114 (Fla. 4th DCA 1981)
- Stephens v. State, 399 So. 2d 1106 (Fla. 5th DCA 1981)
- Cephus Wade v. State, 402 So. 2d 534 (Fla. 5th DCA 1981)
- Dixon v. State, 339 So. 2d 688 (Fla. 2d DCA 1976)