DENNIS E. SHEPARD, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Shepard appeals the denial of his Rule 3.850 motion challenging the trial court's allocation of 110 days of presentence jail time credit across two concurrent sexual battery sentences. The Third District holds that presentence jail time credit may be allocated to concurrent sentences in any manner the trial court sees fit, as long as the full jail time is credited, and affirms the trial court's allocation of 55 days credit to each sentence.
Presentence jail time credit may be allocated to two or more concurrent sentences in any manner the trial court sees fit, as long as the full jail time is credited to the sentences collectively. The trial court's allocation of 55 days to each of the two concurrent sentences was proper.
[1] Pre-sentence jail time credit for concurrent sentences may be allocated by the trial court in any manner as the court sees fit, provided the full jail time is credited.
[2] A trial court is not required to allocate pre-sentence jail time credit to each of two or more concurrent sentences.
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Join FLexlaw to unlock all legal intelligence“We agree with the reasoning of the Fifth District Court of Appeal and hold that pre-sentence jail time can be allocated to two or more concurrent sentences in any manner as the trial court sees fit as long as the full jail time is credited.”
States the holding that trial courts have discretion in allocating presentence jail time among concurrent sentences provided all time is credited
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Join FLexlaw to unlock all legal intelligenceShepard spent 110 days in county jail before being sentenced on two counts of sexual battery. The trial court awarded him 55 days credit on each of th…
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JORGENSON, Judge.
Shepard raises several points on appeal from the denial of his Florida Rule of Criminal Procedure 3.850 motion. We find that only one of these points merits discussion.
Shepard spent 110 days in the county jail prior to being sentenced on two counts of sexual battery. The trial court awarded Shepard 55 days credit on each sentence. The sentences were set to run concurrently. It is Shepard’s contention that the trial court erred in not crediting the full amount of time served to each sentence. Shepard’s contention finds support in recent decisions of the First and Second District Courts of Appeal. Martin v. State, 452 So. 2d 938 (Fla. 2d DCA 1984); Nedd v. Wainwright, 449 So. 2d 982 (Fla. 1st DCA 1984); Blackwell v. State, 449 So. 2d 1296 (Fla. 2d DCA 1984). In each of those decisions our sister courts held that it was error for the trial court to award jail time credit on only one of two or more concurrent sentences and that full jail time should be credited to each of the sentences.
The state relies on recent decisions of the Fifth District Court of Appeal which have rejected the holding in the above-mentioned decisions. Green v. State, 450 So. 2d 1275 (Fla. 5th DCA 1984); Amlotte v. State, 435 So. 2d 249 (Fla. 5th DCA 1983), affd on other grounds, 456 So. 2d 448 (Fla.1984). In Amlotte the court stated:
We cannot agree with the appellant that concurrent sentences for identical terms of years compel presentence [sic] jail time credit on each sentence. Nothing in section 921.161, Florida Statutes (1981), requires, or even suggests, this construction.1 We held in Fenn v. State, 418 So. 2d 286 (Fla. 5th DCA 1982), that where there are two sentences for two crimes, the credit for pre-sentence jail time need not be allocated to both of those sentences. We made no attempt in Fenn to distinguish between consecutive and concurrent sentences.
The appellant’s reliance on the Florida Supreme Court case of Jenkins v. Wainwright, 285 So. 2d 5 (Fla.1973), is misplaced. The sentence in that case, which was imposed at a time where the granting of credit for time served was discretionary with the trial judge, was ambiguous, and the Supreme Court’s opinion merely dealt with the reasonable interpretation of the intent of the sentencing judge.
435 So. 2d at 252 (footnote added).
We agree with the reasoning of the Fifth District Court of Appeal and hold that pre-sentence jail time can be allocated to two or more concurrent sentences in any manner as the trial court sees fit as long as the full jail time is credited.2 Accordingly, the trial court’s order denying Shepard’s Florida Rule of Criminal Procedure 3.850 motion is affirmed. We note conflict with the First and Second District Courts of Appeal.
Affirmed.
. Section 921.161, Florida Statutes (1983) states, in pertinent part:
(1) 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 trial court may properly credit the full jail time to one of the concurrent sentences, to all of the concurrent sentences, or may allocate the jail time among the sentences as was done in the instant case.
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Daniels v. State, 491 So. 2d 543 (Fla. 1986)…on only one of four concurrent sentences for the time he spent in jail awaiting sentencing on multiple charges. The district court noted that its decision directly conflicts with the view of the Third District Court of Appeal. See Shepard v. State, 459 So. 2d 460 (Fla. 3d DCA 1984). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. We note that this decision also conflicts with the position of the Fifth District Court of Appeal, see Green v. State, 450 So. 2d 1275 (Fla. 5th DCA 1984), but is consistent wi…
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Sheldon v. State, 478 So. 2d 489 (Fla. 1st DCA 1985)…PER CURIAM. AFFIRMED. Miller v. State, 297 So. 2d 36 (Fla. 1st DCA 1974); Shepard v. State, 459 So. 2d 460 (Fla. 3d DCA 1984); Green v. State, 450 So. 2d 1275 (Fla. 5th DCA 1984). Contra Martin v. State, 452 So. 2d 938 (Fla. 2d DCA 1984). SHIVERS, WENTWORTH and WIG-GINTON, JJ., concur.…
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Yohn v. State, 461 So. 2d 263 (Fla. 2d DCA 1984)…ainst concurrent sentences resulting from incarceration on multiple charges. Here, however, defendant was charged at different times with a series of offenses for which she was incarcerated. See § 921.-161(1), Fla.Stat. (1983). Cf. Shepard v. State, 459 So. 2d 460 (Fla. 3d DCA 1984); Green v. State, 450 So. 2d 1275 (Fla. 5th DCA 1984); Amlotte v. State, 435 So. 2d 249 (Fla. 5th DCA 1983), aff'd on other grounds, 456 So. 2d 448 (Fla.1984); Miller v. State, 297 So. 2d 36 (Fla. 1st DCA 1974). Accordingly, we va…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Amlotte v. State, 456 So. 2d 448 (Fla. 1984)
- Martin v. State, 452 So. 2d 938 (Fla. 2d DCA 1984)
- Hunter v. State, 435 So. 2d 249 (Fla. 1st DCA 1983)
- Buford A. Green v. State, 450 So. 2d 1275 (Fla. 5th DCA 1984)
- Blackwell v. State, 449 So. 2d 1296 (Fla. 2d DCA 1984)
- Jenkins v. Louie L. Wainwright, 285 So. 2d 5 (Fla. 1973)
- Nedd v. Louie L. Wainwright, 449 So. 2d 982 (Fla. 1st DCA 1984)
- Gosselin v. Burt, 418 So. 2d 286 (Fla. 3d DCA 1982)
- Cumby v. State, 418 So. 2d 286 (Fla. 5th DCA 1982)