JIMMY CARTER LAMAR, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The trial court must make findings on the appellant's allegations regarding credit for time served and sentence enhancement, or hold an evidentiary hearing.
Appellant alleged he was not given credit for time served on an invalidated armed robbery charge and that an invalid sentence was used to enhance anot…
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GLICKSTEIN, Judge.
Appellant alleges that he was not given credit for time served on an invalidated armed robbery charge, and that an invalid sentence was used to enhance another charge. These allegations are properly raised on a Rule 3.850 motion, Meintzer v. State, 399 So. 2d 133, 135 (Fla. 5th DCA 1981).
In Vellucci v. Cochran, 138 So. 2d 510 (Fla.1962), an appellant’s conviction was invalidated, and his case sent back for retrial. Florida’s highest court observed that if on retrial appellant was either acquitted or received fewer days than those already served, the time served on this first charge would be applied to a second convic tion on other charges. The same result is implied by Coleman v. Wainwright, 323 So. 2d 581 (Fla.1975). Time served on a void conviction had been credited toward two later convictions. Although this was not the issue on appeal, the Coleman court held the time properly credited, implying that the time served on the invalid conviction could be credited to the others. Thus, the allegation that the trial court failed to consider time already served, if true, warrants modification of appellant’s sentence. Similarly, if the court considered the robbery conviction for the purpose of enhancing appellant’s sentence, a change might be appropriate.
Both of appellant’s contentions are questions on which the trial court should make a finding, see Cookish v. State, 416 So. 2d 53 (Fla. 4th DCA 1982); Meintzer v. State, 399 So. 2d 133 (Fla. 5th DCA 1981). Where such improprieties are alleged, the trial court, in addition, should attach the portions of the record demonstrating that appellant is not entitled to relief, if it summarily denies the motion. Otherwise, it should hold an evidentiary hearing. Jones v. State, 384 So. 2d 736 (Fla. 4th DCA 1980); Fla.R.App.P. 9.140(g). We remand with directions that the trial court proceed in compliance with the foregoing requirements.
ANSTEAD, C.J., and DOWNEY, J., concur.
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Martin v. State, 525 So. 2d 901 (Fla. 5th DCA 1987)…d 1201 (Fla.1982); Dowda v. State, 417 So. 2d 1147 (Fla. 5th DCA 1982); Jablonskis v. State, 422 So. 2d 356 (Fla. 5th DCA 1982); Waite v. State, 423 So. 2d 529 (Fla. 5th DCA 1982); Delgado v. State, 423 So. 2d 603 (Fla. 3d DCA 1982); Lamar v. State, 443 So. 2d 414 (Fla. 4th DCA 1984); Hampton v. State, 446 So. 2d 1171 (Fla. 5th DCA 1984); Scott v. State, 447 So. 2d 1002 (Fla. 5th DCA 1984); Jensen v. State, 449 So. 2d 969 (Fla. 5th DCA 1984); Spurlock v. State, 449 So. 2d 973 (Fla. 5th [*903] DCA 1984), rev.…
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Chaplin v. State, 473 So. 2d 842 (Fla. 1st DCA 1985)…g it on direct appeal. Spurlock v. State, 449 So. 2d 973 (Fla. 5th DCA 1984). The courts have held that the proper remedy for a convicted felon seeking relief from a sentence is to apply to the trial court for post-conviction relief. Lamar v. State, 443 So. 2d 414 (Fla. 4th DCA 1984); and Hill v. State, 434 So. 2d 974 (Fla. 5th DCA 1983). Appellant understandably argues that his twelve-year concurrent sentences are illegal, since his correct guidelines score (161 points) dictates a guidelines range of seven y…
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Silvester v. State, 794 So. 2d 683 (Fla. 4th DCA 2001)…KLEIN, J., concurring specially. I agree with the majority opinion and am writing separately to address two cases cited by appellant. He relies primarily on Lamar v. State, 443 So. 2d 414 (Fla. 4th DCA 1984), but he candidly acknowledges that “the opinion is somewhat short on facts.” Although we cannot determine the relationship of the sentences in Lamar, Lamar relied on Vellucci v. Cochran, 138 So. 2d 510 (Fla.1962). In Vellucci t…
Authorities Cited
- Meintzer v. State, 399 So. 2d 133 (Fla. 5th DCA 1981)
- Jones v. State, 384 So. 2d 736 (Fla. 4th DCA 1980)
- Vellucci v. Cochran, 138 So. 2d 510 (Fla. 1962)
- Coleman v. Louie L. Wainwright, 323 So. 2d 581 (Fla. 1975)
- Pressler v. Cmty. Hosp. OF the Palm Beaches, Inc., 416 So. 2d 53 (Fla. 4th DCA 1982)
- Cookish v. State, 416 So. 2d 53 (Fla. 4th DCA 1982)