ROBERT LEO JEAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Robert Jean appeals the denial of his motion to correct sentence seeking credit for time served on a split sentence based on the Florida Supreme Court's recent decision in Tripp v. State. The District Court of Appeal reverses, holding that Tripp must be applied retroactively to all factually similar cases, citing fairness principles and the fundamental nature of sentencing errors.
Tripp v. State must be applied retroactively to all factually similar cases without regard to when sentences became final. The proper legal framework is Bass v. State, which requires retroactive application based on fairness considerations and the fundamental nature of sentencing errors, not the Glenn test applied by the trial court.
[1] A supreme court decision establishing a new rule of law regarding credit for time served may be applied retroactively to cases that were final before the decision was ren…
[2] Sentences that reflect inadequate credit for time served are considered illegal and constitute fundamental error, which may be corrected at any time.
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Join FLexlaw to unlock all legal intelligence“that it would be manifestly unfair for prisoners such as Bass, who received consecutive minimum mandatory sentences prior to Palmer, to be treated differently from those who had the good fortune of being sentenced for similar conduct after that decision was rendered”
Establishes the fairness principle underlying retroactive application of sentencing law changes
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Join FLexlaw to unlock all legal intelligenceJean received a split sentence and sought credit for time served on the incarcerative portion based on Tripp v. State. At the time of Jean's original …
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[*593] PER CURIAM.
Robert Jean appeals the summary denial of his motion to correct sentence. We reverse.
The motion, which seeks credit for time served on the incarcerative portion of a previously imposed split sentence, is based on the supreme court’s recent decision in Tripp v. State, 622 So. 2d 941 (Fla.1993). At the time of Jean’s sentencing, the law in this district would not have required the granting of the credit he now seeks. State v. Tripp, 591 So. 2d 1055 (Fla. 2d DCA 1991). Accordingly, the trial court found that the supreme court’s Tripp opinion “is not a major constitutional change of law which constitutes a development of fundamental significance which warrants retroactive application,” and denied the motion. See, e.g., State v. Glenn, 558 So. 2d 4 (Fla.1990).
We believe the outcome of this case should be controlled, not by Glenn, but by Bass v. State, 530 So. 2d 282 (Fla.1988). The petitioner in Bass had received consecutive minimum mandatory sentences, pursuant to section 775.087, Florida Statutes (1981), for offenses arising from a single criminal episode. The supreme court later disavowed this practice in Palmer v. State, 438 So. 2d 1 (Fla.1983), and Bass sought posteonviction relief based on Palmer. In determining that Palmer merited retroactive application, the supreme court stated its belief “that it would be manifestly unfair for prisoners such as Bass, who received consecutive minimum mandatory sentences prior to Palmer, to be treated differently from those who had the good fortune of being sentenced for similar conduct after that decision was rendered.” 530 So. 2d at 283.
In Cook v. State, 553 So. 2d 1292 (Fla. 1st DCA 1989), the court relied upon Bass in determining that retroactive effect should be given to State v. Green, 547 So. 2d 925 (Fla.1989) (credit for gain-time awarded during the incarcerative portion of a split sentence). The present case involves 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 594 (Fla. 1st DCA 1986). Accordingly, such error, once discovered, may be corrected “at any time.” Fla.R.Crim.P. 3.800(a).
Having determined that Tripp must be applied to all factually similar cases, without regard to when the sentences in those cases became final, we remand this case for determination on its merits.
Reversed.
CAMPBELL, A.C.J., and THREADGILL and BLUE, JJ., concur.
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Mongiouvi v. State, 639 So. 2d 686 (Fla. 2d DCA 1994)…ourt again deny relief, it must attach portions of the files and records which refute the appellant’s allegations. Reversed and remanded. SCHOONOVER, A.C.J., and LAZZARA and QUINCE, JJ., concur. . Tripp has retroactive application. Jean v. State, 627 So. 2d 592 (Fla. 2d DCA 1993).…
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Syverson v. State, 659 So. 2d 1344 (Fla. 5th DCA 1995)…al sentence. See Thomas v. State, 648 So. 2d 298 (Fla. 5th DCA 1995). The sentence was within the guidelines and within the statutory maximum. Had Syverson received less jail credit than he earned, a motion would have been proper. See Jean v. State, 627 So. 2d 592 (Fla. 2d DCA 1993) (concluding that inadequate jail credit results in an illegal sentence for purposes of rule 3.800). Nonetheless, the trial court could have entered an order modifying the sentence within 60 days after imposition of sentence. A le…
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Dominguez v. State, 630 So. 2d 1236 (Fla. 2d DCA 1994)…v. State, 622 So. 2d 941, 942 n. 2 (Fla.1993), appellant is entitled to receive credit for the time served on the prison term, including previously earned basic, educational and incentive gain-time. Tripp has retroactive application. Jean v. State, 627 So. 2d 592 (Fla. 2d DCA 1993). The trial court denied the motion without explanation, attaching copies of the judgment and sentences and case progress notes. None of the attachments reflect how the credit awarded was calculated. Accordingly, we reverse the d…
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
- Dean v. Publix Supermarkets, Inc., 438 So. 2d 1 (Fla. 1983)
- Tripp v. State, 622 So. 2d 941 (Fla. 1993)
- State v. Green, 547 So. 2d 925 (Fla. 1989)
- State v. Glenn, 558 So. 2d 4 (Fla. 1990)
- Bass v. State, 530 So. 2d 282 (Fla. 1988)
- State v. Tripp, 591 So. 2d 1055 (Fla. 2d DCA 1991)
- Napoleon Dowdell v. State, 500 So. 2d 594 (Fla. 1st DCA 1986)
- Easterling v. State, 596 So. 2d 103 (Fla. 2d DCA 1992)
- Cook v. State, 553 So. 2d 1292 (Fla. 1st DCA 1989)