STEPHEN A. TERRY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Terry, a prisoner, sought jail time credit through a Rule 3.800(a) motion, claiming 270 days of pre-sentence incarceration but receiving only 96 days of credit. The trial court summarily denied the motion, and the appellate court reversed, holding that sworn allegations of jail time create a factual issue requiring an evidentiary hearing.
A motion under Rule 3.800(a) need not conform to the procedural requirements of Rule 3.850, and sworn allegations regarding the duration of pre-sentence incarceration create a factual issue that precludes summary denial of a jail time credit motion. The defendant must be afforded an evidentiary hearing to establish the truth of his factual allegations regarding pre-sentence jail time.
[1] A motion for jail time credit under Florida Rule of Criminal Procedure 3.800(a) need not conform to the procedural requirements of Rule 3.850.
[2] A defendant may seek proper jail time credit by post-sentencing motion under either Rule 3.850 or Rule 3.800(a).
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Join FLexlaw to unlock all legal intelligence“A motion under Rule 3.800(a) need not conform to the procedural requirements of Rule 3.850.”
Establishes that Rule 3.800(a) motions have independent procedural status and are not subject to the stricter requirements of Rule 3.850.
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Join FLexlaw to unlock all legal intelligenceTerry was incarcerated in county jail on charges resulting in his sentence from February 8, 1987 to May 1987 and from September 29, 1987 until April 2…
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PER CURIAM.
The defendant, a prisoner in custody under sentence, filed a motion in the trial court under Florida Rule of Criminal Procedure 3.800(a) alleging that the trial court allowed only 96 days of jail time credit against his sentence whereas the defendant alleged he was incarcerated in jail on the charges resulting in his sentence 270 days for which he was entitled to credit. The trial court summarily denied the motion because (1) it failed to comply with Rule 3.850, (2) the issue should have been raised on direct appeal, and (3) the defendant was properly awarded jail time credit under section 921.161(1), Florida Statutes. The defendant appeals. We reverse.
A motion under Rule 3.800(a) need not conform to the procedural requirements of Rule 3.850. A defendant may seek proper jail time credit by post sentencing motion under either Rule 3.850 or 3.800(a). See Martin v. State, 525 So. 2d 901 (Fla. 5th DCA 1987). In his verified 3.800(a) motion for jail time credit, the defendant swore that he was incarcerated in jail on the charges in this case from February 8, 1987 to May, 1987 and from September 29, 1987 until April 26, 1988 or a total of 270 days. As opposed to this sworn allegation the record on appeal contains nothing indicating that the defendant was entitled to only 96 days credit. The sworn allegation was sufficient to create a factual issue as to the proper amount of jail time credit and therefore, the motion should not have been summarily denied. The summary denial is hereby reversed and the case remanded with directions that the defendant be given an opportunity at an evidentiary hearing to establish the truth of his factual allegations as to the time he spent in the county jail before sentencing for which he is entitled to credit against his sentence pursuant to section 921.161(1), Florida Statutes.
REVERSED and REMANDED.
COWART, GOSHORN and PETERSON, JJ., concur.
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Thomas v. State, 634 So. 2d 175 (Fla. 1st DCA 1994)…(Fla. 5th DCA 1993); Littlejohn v. State, 616 So. 2d 129 (Fla. 2d DCA 1993); Thomas v. State, 611 So. 2d 600 (Fla. 2d DCA 1993); Hayes v. State, 610 So. 2d 737 (Fla. 2d DCA 1993); Sampson v. State, 598 So. 2d 211 (Fla. 2d DCA 1992); Terry v. State, 567 So. 2d 1050 (Fla. 5th DCA 1990). In Inclima, the court observed that “[t]his requirement is now specifically contained in Florida Rule of Appellate Procedure 9.140(g), which became effective on January 1, 1993.”1 We recognize there are situations where the cir…1 / 2
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Dennis v. State, 754 So. 2d 857 (Fla. 3d DCA 2000)…ough relief pursuant to Rule 3.850 is time barred, we treat this as a Rule 3.800 motion. As the State properly concedes, a defendant may move for post conviction relief from an illegal sentence at any time. Fla. R.Crim. P. 3.800(a); Terry v. State, 567 So. 2d 1050 (Fla. 5th DCA 1990). Moreover, a sentence which fails to grant proper credit for time served is an illegal sentence which may be corrected at any time. See Hopping v. State, 650 So. 2d 1087, 1088 (Fla. 3d DCA 1995). However, we find that defendant w…
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Sanders v. State, 579 So. 2d 326 (Fla. 5th DCA 1991)…URIAM. We affirm the trial court’s denial of defendant’s petition to allow credit for jail time without prejudice to the defendant to file a motion pursuant to rule 3.800(a) or rule 3.850 of the Florida Rules of Criminal Procedure. Terry v. State, 567 So. 2d 1050 (Fla. 5th DCA 1990). We affirm the denial of defendant’s petition on the ground that the petition does not specifically state when defendant was tried or, if applicable, when he entered a plea and was convicted and sentenced on the Orange County cha…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Martin v. State, 525 So. 2d 901 (Fla. 5th DCA 1987)