SCOTT CARSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Scott Carson appeals an amended sentence after he was erroneously discharged from prison. The court affirmed the trial court's authority to correct the clerical error in the credit for time served, but reversed and remanded to ensure Carson received credit for the period he was at liberty following his erroneous discharge.
The trial court properly corrected the clerical error in the original sentence without violating Rule 3.800, as it was merely executing the sentence as originally ordered. While the trial court correctly ordered Carson's reimprisonment for the unexpired sentence, Carson must receive credit for time served and for the time he was at liberty following the erroneous discharge.
[1] A trial court may correct clerical mistakes in its judgments and records, nunc pro tunc, even after the term of court has expired, and such corrections generally relate b…
[2] A trial court's authority to correct clerical errors in its judgments and records is not limited by rules governing the modification or reduction of sentences within a sp…
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Join FLexlaw to unlock all legal intelligence“A court may correct clerical mistakes in its own judgments and records, nunc pro tunc, even after the term of court has expired, and such corrections generally relate back and take effect as of the date of judgment.”
Establishes the court's authority to correct clerical errors in sentencing beyond the term of court
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Join FLexlaw to unlock all legal intelligenceCarson was convicted of burglary in 1981 and sentenced to probation. His probation was revoked in 1984 after violating conditions, and he was re-sente…
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PER CURIAM.
Appellant, Scott Carson, appeals from an amended judgment and sentence. We affirm in part and reverse in part.
Appellant was charged on April 30, 1981, with burglary, a violation of section 810.-02(3), Florida Statutes (1981). He entered a plea of guilty and on January 28, 1982, was placed on probation for three years. An affidavit charging him with violating two conditions of probation was subsequently filed on August 27, 1984. Appellant admitted the violations, his probation was revoked, and he was adjudicated guilty of the underlying offense of burglary. Appellant was sentenced on January 14, 1985, to thirty months imprisonment with credit for time served. This sentence was to run concurrently with appellant’s sentence for a pending violation of parole charge. It appears that appellant served two months of the sentence and was discharged.
On May 16, 1985, the state filed a motion to correct appellant’s sentence to reflect the correct amount of credit for time served. At a hearing held on the motion it was revealed that appellant had been erroneously discharged because the sheriff’s office had erred in calculating credit for time served. Appellant had received 546 days of credit when he should have received 173 days. The court granted the state’s motion and issued an amended sentence, nunc pro tunc, January 14, 1985. This appeal timely followed.
Appellant contends that the trial court erroneously increased his sentence after he had already been discharged. He argues that under Florida Rule of Criminal Procedure 3.800, a court may reduce or modify a sentence imposed by it within sixty days after imposition, but may not increase the sentence. Here, the court allegedly not only erred by increasing the sentence, but the motion to correct sentence was untimely because it was not filed within the sixty-day period. We find, however, that rule 3.800 has no application to this ease, because the trial court was neither correcting an illegal sentence nor reducing a legal sentence, but was attempting to execute the original sentence it had ordered. Perry v. State, 357 So. 2d 425 (Fla. 3d DCA 1978).
A court may correct clerical mistakes in its own judgments and records, nunc pro tunc, even after the term of court has expired, and such corrections generally relate back and take effect as of the date of judgment. Boggs v. Wainwrigkt, 223 So. 2d 316 (Fla.1969); Perry.
The trial court orally sentenced appellant to thirty months incarceration, “with credit for time served.” It therefore did not err in correcting the clerical error that caused this credit to be reflected as 546 days.
When a prisoner is released or discharged from prison by mistake, he may be recommitted if his sentence would not have expired had he remained in confinement. Green v. Christiansen, 732 F. 2d 1397 (9th Cir.1984); White v. Pearlman, 42 F. 2d 788 (10th Cir.1930); see also, State v. Coleman, 149 Fla. 28, 5 So. 2d 60 (1941). Unless interrupted by violation of parole or some fault of the prisoner, the sentence continues to run while the prisoner is at liberty, and the prisoner’s sentence must be credited with that time. Green; White; see also, Coleman.
Therefore, although the trial court did not err in ordering appellant reimprisoned because his sentence had not expired, appellant must receive credit for the time he has been at liberty. We, accordingly, remand with instructions to credit appellant for the time he has been at liberty in addition to the time he has served.
Reversed and remanded.
CAMPBELL, A.C.J., and SCHOON-OVER and SANDERLIN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Cited By (21 total)
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Reynolds v. State, 590 So. 2d 1043 (Fla. 1st DCA 1991)…1009 (Fla. 1st DCA 1988). And in Drumwright v. State, 572 So. 2d 1029 (Fla. 5th DCA 1991), upon which the appellant relies, the sentencing court was not required to expressly incorporate such credit in an amended sentence. But see, Carson v. State, 489 So. 2d 1236 (Fla. 2d DCA 1986). None of these cases allow the issue to be entertained pursuant to rule 3.800(a). In addition to the possibility of mandamus, if necessary, the appellant may also have other potential avenues of relief. But the appellant did not…
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Johnson v. State, 561 So. 2d 1254 (Fla. 2d DCA 1990)…e requirement generally contemplates that he has already commenced his probation. The fact that he was mistakenly released from custody before serving a prison sentence did not terminate that sentence and commence his probation. See Carson v. State, 489 So. 2d 1236 (Fla. 2d DCA 1986) (unless interrupted by fault of prisoner, sentence continues to run while he is at liberty). The appellant’s probation will not commence until he serves his prison sentence. See § 948.01(8), Fla.Stat. (1987). See also Van Tassel v…
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Sherrell C. Sutton v. Dep't OF Corr. & Parole & Prob. Comm'n, 531 So. 2d 1009 (Fla. 1st DCA 1988)…ke. In any case, Sutton remained at liberty for 183 days until his arrest on other charges in January 1982. When a prisoner is released from prison by mistake, his sentence continues to run in the absence of some fault on his part. Carson v. State, 489 So. 2d 1236 (Fla. 2d DCA 1986). Based on its contention that Sutton “escaped”, DOC has refused to deduct the 183 days he spent at liberty from his sentence. Further, while never charging or obtaining a conviction for escape, DOC has noted in its records that Su…
Previewing 3 of 21 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State Ex Rel. Libtz v. Coleman, 5 So. 2d 60 (Fla. 1941)
- White v. Pearlman, 42 F.2d 788 (10th Cir. 1930)
- Boggs v. Honorable Louie L. Wainwright, 223 So. 2d 316 (Fla. 1969)
- Green v. Christiansen, 732 F.2d 1397 (9th Cir. 1984)
- The City OF ST. Petersburg Beach v. Marine Attractions, Inc., 357 So. 2d 425 (Fla. 2d DCA 1978)
- Hon. Morton L. Perry v. The State of Fla. ex rel. James Terry Mills & Trida Ann Gilbert, 357 So. 2d 425 (Fla. 3d DCA 1978)