MICHAEL W. EASTERLING, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a trial court must attach record portions refuting allegations when denying a motion to correct an illegal sentence.
Appellant alleged his written sentence failed to reflect oral pronouncement of two and one-half years' credit for time served. The written sentence re…
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PER CURIAM.
Michael Easterling appeals the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse.
Appellant alleged that his written sentence fails to reflect two and one-half years’ credit for time served. He further alleged that at sentencing, the trial court orally pronounced that he was entitled to credit for time served in the amount of two and one-half years. The written sentence, which is attached to the motion, reflects credit for 197 days plus credit for time served on his prior incarceration in this ease. The trial court denied the motion without attachments. Based on the written sentence alone, we are unable to determine whether the appellant received the proper amount of credit for time served and therefore must reverse. On remand, if the trial court should again deny the motion, it must attach portions of the record conclusively refuting appellant’s allegations.
Appellant’s direct appeal was pending when he filed the motion and when the trial court entered the order on the motion. His direct appeal is still pending, and neither the record on appeal nor any brief has been filed. Because the trial court has concurrent jurisdiction to correct an illegal sentence which may have resulted from a clerical oversight, the trial court may again rule on the motion after remand. See Barber v. State, 590 So. 2d 527 (Fla. 2d DCA 1991). Any party aggrieved by the subsequent action of the trial court must file a notice of appeal within thirty days.
Reversed and remanded.
LEHAN, A.C.J., and HALL and THREADGILL, JJ., concur.
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Denson v. State, 711 So. 2d 1225 (Fla. 2d DCA 1998)…603 (Fla. 2d DCA 1996), this court held en banc that a motion pursuant to Florida Rule of Criminal Procedure 3.800(a) could address only a clerical error during the pendency of an appeal. This ruling reconfirmed our decision in Easterling v. State, 596 So. 2d 103 (Fla. 2d DCA 1992), which was based on Barber v. State, 590 So. 2d 527 (Fla. 2d DCA 1991). Carter proved to be a short-lived decision because rule 9.600(d) was created effective January 1, 1997. See In re Amendments to the Florida Rules of Appellate…
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Jean v. State, 627 So. 2d 592 (Fla. 2d DCA 1993)…similar considerations of fairness. Rule 3.800(a) has been approved for the correction of errors relating to credit for time served. See, e.g., Thomas v. State, 18 Fla.L.Weekly D2096, 1994 WL 51721 (Fla. 1st DCA Sept. 22, 1993); Easterling v. State, 596 So. 2d 103 (Fla. 2d DCA 1992). That is, sentences which reflect inadequate credit are “illegal.” An illegal sentence is considered fundamental error because it causes the defendant to serve a longer term than is permitted by law. Dowdell v. State, 500 So. 2d 5…
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State v. Freddy Morales, 678 So. 2d 510 (Fla. 3d DCA 1996)…Rule 3.800(a) without a relinquishment of jurisdiction. Carter v. State, 21 Fla. L. Weekly D1459 (Fla. 2d DCA June 19, 1996); Curry v. State, 657 So. 2d 50 (Fla. 2d DCA 1995), review granted, 676 So. 2d 412 (Fla. June 25,1996); Easterling v. State, 596 So. 2d 103 (Fla. 2d DCA 1992); Barber v. State, 590 So. 2d 527 (Fla. 2d DCA 1991). It seems to me that under the terms of Florida Rule of Appellate Procedure 9.600(b), as well as the weight of Florida authority, a relinquishment of jurisdiction was necessary…
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- Barber v. State, 590 So. 2d 527 (Fla. 2d DCA 1991)