FREDDIE BEE JAMES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a sentencing error regarding jail time credit can be raised on direct appeal, and the trial court improperly attempted to grant credit indirectly.
The appellant appealed his probation revocation and sentence, arguing he did not receive credit for time served in county jail as a condition of proba…
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NIMMONS, Judge.
James appeals the trial court’s order revoking his probation and the judgment and sentence imposed after revocation. We af firm the order revoking probation and the resulting adjudication of guilt of the subject felony.
The appellant complains that the sentence which was imposed after revocation did not give him credit for the ten months county jail time he had served as a condition of probation.
The State asserts that the appellant may raise the alleged sentencing error only by a Fla.R.Cr.P. 3.850 motion, not by direct appeal from the sentence. We reject this assertion. See Walker v. State, 422 So. 2d 977 (Fla. 1st DCA 1983); Polk v. State, 418 So. 2d 388 (Fla. 1st DCA 1982).
At the sentencing hearing, the trial judge announced that he was giving the defendant credit for the time he had already served by imposing a four year term instead of a five year term which he would have otherwise imposed. This is improper under Section 921.161(1), Florida Statutes (1981), which provides:
A sentence of imprisonment shall not begin to run before the date it is imposed, but the court imposing a sentence shall allow a defendant credit for all of the time he spent in the county jail before sentence. The credit must be for a specified period of time and shall be provided for in the sentence.
The revocation order and judgment are AFFIRMED. The sentence is VACATED and this cause is REMANDED to the trial court for resentencing. Although the defendant may be sentenced up to a maximum of five years, the new sentence shall specifically credit the defendant with all time which the defendant has served in connection with the subject charge.
SMITH and WIGGINTON, JJ„ concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Dailey v. State, 471 So. 2d 1349 (Fla. 1st DCA 1985)…county jail before sentence. The credit must be for a specified period of time and should be provided for in the sentence. Upon remand, the new sentence shall specifically credit Dailey with all time served to which he is entitled. James v. State, 443 So. 2d 510 (Fla. 1st DCA 1984); Wargo v. State, 393 So. 2d 3 (Fla. 1st DCA 1980). Dailey contends that points were improperly added to the guidelines form because he was not under legal constraint at the time of the original offense and because there was no s…
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Chaplin v. State, 473 So. 2d 842 (Fla. 1st DCA 1985)…5th DCA 1982). Although this type of sentencing error may be raised by way of direct appeal, the courts have nevertheless allowed it to be remedied in post-conviction proceedings under Rule 3.850, Florida Rules of Criminal Procedure. James v. State, 443 So. 2d 510 (Fla. 1st DCA 1984); Polk v. State, 418 So. 2d 388 (Fla. 1st DCA 1982). Here, since the state has conceded error, it would serve no purpose to remand for an evidentiary hearing. However, we decline to order that appellant’s sentence be corrected so…
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van Ellis v. State, 455 So. 2d 1065 (Fla. 1st DCA 1984)…on. Appellant properly may raise this issue by direct [*1066] appeal from the sentence even in the absence of an objection below since the sentencing error is fundamental. Walker v. State, 442 So. 2d 977 (Fla. 1st DCA 1983). See also James v. State, 443 So. 2d 510 (Fla. 1st DCA 1984) and Polk v. State, 418 So. 2d 388 (Fla. 1st DCA 1982). We reject the state’s argument that the decision in Epler v. Judges of Thirteenth J. C., Hillsborough Cty., 308 So. 2d 134 (Fla. 2d DCA 1975) established the ruling that the…
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- Polk v. State, 418 So. 2d 388 (Fla. 1st DCA 1982)