LARRY VAN ELLIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Van Ellis appeals his probation revocation and robbery sentence, challenging the trial court's calculation of jail time credit. The court holds that sentencing errors regarding time-served credit are fundamental errors reviewable on direct appeal even without objection below, and remands for a hearing to determine proper credit.
The court holds that sentencing errors regarding time-served credit are fundamental errors subject to direct appeal review without prior objection. The trial court must conduct a hearing on remand to determine the actual jail time served and provide appropriate credit under Florida Statute section 921.161(1).
[1] A sentencing error is fundamental and may be raised on direct appeal even in the absence of an objection below.
[2] A defendant may raise a sentencing error on direct appeal when the error is fundamental, notwithstanding the absence of a specific objection at the trial court level.
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Join FLexlaw to unlock all legal intelligence“it appears from the record that appellant may not have been given full credit for the jail time he has served. Therefore, upon remand, the trial court should conduct a hearing to determine the time actually served in jail by appellant on the original split sentence and on the sentence imposed as a result of the first violation of probation, and to give appellant appropriate credit for that jail time on the sentence under review.”
Establishes the court's holding that proper credit calculation requires a hearing on remand
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Join FLexlaw to unlock all legal intelligenceVan Ellis was convicted of unarmed robbery on November 3, 1981, and received a split sentence of 364 days in jail with 119 days credit, followed by th…
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WIGGINTON, Judge.
Appellant appeals the trial court’s order of September 26, 1983, revoking his probation, adjudicating him guilty of unarmed robbery, and sentencing him to six years in prison with credit for 139 days previously served in connection with this offense. Appellant alleges error in the amount of credit given for time served and in the trial judge’s denial of his October 13, 1983 motion to that effect, entitled “Motion to Allow Credit for Jail Time.”
The record shows that on November 3, 1981, appellant was adjudged guilty of the offense of unarmed robbery and was given a split sentence of 364 days in jail with credit for 119 days already served, to be followed by three years probation. On May 10, 1983, he pled guilty to a violation of his probation for which he was sentenced to four months in jail, with three days credit, and his probation was extended for three years. In June, 1983, appellant was charged with a second violation of probation which is the subject of the order appealed.
As in Delgado v. State, 423 So. 2d 603 (Fla. 3d DCA 1982), it appears from the record that appellant may not have been given full credit for the jail time he has served. Therefore, upon remand, the trial court should conduct a hearing to determine the time actually served in jail by appellant on the original split sentence and on the sentence imposed as a result of the first violation of probation, and to give appellant appropriate credit for that jail time on the sentence under review. See section 921.161(1), Florida Statutes. Appellant need not be present at the hearing upon remand.
The state argues that since appellant did not object to the alleged sentencing error below, he is precluded, from raising this issue on direct appeal and his only possible avenue at this point is via a Florida Rule of Criminal Procedure 3.800 motion in the trial court. We reject that assertion. Appellant properly may raise this issue by direct 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 failure to make an objection to this type of sentencing error renders the error non-reviewable in all cases. In Epler, unlike the instant case, pursuant to a plea bargain, the defendant voluntarily and specifically relinquished his right to be credited for time served prior to his sentencing. The court held that under those particular circumstances, the defendant waived his right to credit for time served and could not raise that issue on appeal. Therefore, the ruling in that case was limited to the circumstances therein and does not apply to the facts of the case sub judice.
The sentence is vacated and this cause is remanded to the trial court for resentencing.
MILLS and SHIVERS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Silverstein v. State, 654 So. 2d 1040 (Fla. 4th DCA 1995)…ases, the waivers were clearly shown on the record. Where a defendant’s waiver of credit for time served on the incarcerative portion of a split sentence is not clearly shown on the record, it will not be presumed. We agree with Van Ellis v. State, 455 So. 2d 1065 (Fla. 1st DCA), rev. dismissed, 459 So. 2d 1041 (Fla.1984), where the First District declined to find such a waiver where the defendant did not “voluntarily and specifically” relinquish his right to time served. The court found that the mere failure…
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KIO v. State, 624 So. 2d 744 (Fla. 1st DCA 1993)…dit for jail time served may be raised on direct appeal, even in the absence of an objection in the lower tribunal. Dailey v. State, 471 So. 2d 1349, 1360 (Fla. 1st DCA 1985), approved on other grounds, 488 So. 2d 532 (Fla.1986); Van Ellis v. State, 455 So. 2d 1065, 1066 (Fla. 1st DCA), review dismissed, 459 So. 2d 1041 (Fla.1984). Accord Burton v. State, 473 So. 2d 817, 818 (Fla. 2d DCA 1985); Yohn v. State, 461 So. 2d 263, 264 (Fla. 2d DCA 1984).2 The presentence investigation report prepared in this case i…
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Camp v. State, 501 So. 2d 81 (Fla. 1st DCA 1987)…in the sentencing documents and shall make a specific award of credit for jail time served. In the event the parties cannot agree as to the proper amount of jail time credit due, a hearing shall be held on this question as well. Van Ellis v. State, 455 So. 2d 1065 (Fla. 1st DCA) Pet. for rev. dism., 459 So. 2d 1041 (Fla.1984). REVERSED and REMANDED for re-sentencing. [*84] JOANOS, J., concurs. NIMMONS, J., concurs in part and dissents in part with written opinion.…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Polk v. State, 418 So. 2d 388 (Fla. 1st DCA 1982)
- James v. State, 443 So. 2d 510 (Fla. 1st DCA 1984)
- Epler v. Judges OF the Thirteenth Judicial Circuit, 308 So. 2d 134 (Fla. 2d DCA 1975)
- Delgado v. State, 423 So. 2d 603 (Fla. 3d DCA 1982)
- Bennie Lee Walker v. State, 442 So. 2d 977 (Fla. 1st DCA 1983)