MICHAEL T. RIVERA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Michael Rivera appealed his resentenced conviction for attempted first-degree murder and kidnapping, arguing he did not receive proper credit for time served on his original sentence. The court reversed and remanded, holding that Rivera was entitled to credit for nearly seven years spent in prison under the original sentences that were later vacated.
Rivera was entitled to credit against his new sentences for all time he spent in prison under the vacated original sentences, and the written sentencing order must be corrected to conform to the trial court's oral pronouncement granting such credit from November 20, 1986.
[1] A defendant is entitled to credit for time served on original sentences when those sentences are vacated and the defendant is resentenced on remaining convictions.
[2] When a written sentencing order does not conform to the oral pronouncement of the court, the oral pronouncement controls.
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Join FLexlaw to unlock all legal intelligence“We hold that Rivera should have received credit for the almost seven years he spent in prison on his original sentences.”
Establishes the core holding that a defendant is entitled to credit for time served under vacated sentences when resentenced.
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Join FLexlaw to unlock all legal intelligenceRivera was originally convicted of attempted first-degree murder, kidnapping, child abuse, and aggravated battery. On appeal, this court reversed the …
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PER CURIAM.
Michael T. Rivera appeals his sentence after remand for attempted first degree murder and kidnapping, contending that he did not receive the appropriate amount of credit for time served on the original sentence. We reverse.
Rivera was originally convicted of attempted first degree murder, kidnapping, child abuse, and aggravated battery.
This court reversed the two lesser convictions, and remanded for correction of the judgment and resentencing on the remaining counts. Rivera v. State, 547 So. 2d 140 (Fla. 4th DCA 1989), rev. denied, 558 So. 2d 19 (Fla.1990).
The lower court entered a corrected judgment that reflected only the charges of attempted first degree murder and kidnapping, and vacated and set aside the aggravated battery and child abuse convictions.
The trial court resentenced Rivera to the same terms, and the written sentence reflected credit for 281 days time served. Although at the sentencing hearing the lower court stated that it was entering the sentence “nunc pro tunc” to the original sentencing date of November 20, 1986, and that the department of corrections should credit him for all the time he served since November of 1986, it did not do so in the written order. We hold that Rivera should have received credit for the almost seven years he spent in prison on his original sentences. See Hampton v. State, 421 So. 2d 775 (Fla. 5th DCA 1982) (agreeing that the appellant was entitled to credit against his new sentences for time he spent in prison under the vacated sentences); Craig v. State, 608 So. 2d 589 (Fla. 4th DCA 1992) (defendant was entitled to credit for time served on the original sentence which was vacated by the appellate court).
See also Howard v. State, 591 So. 2d 1067 (Fla. 4th DCA 1991) (where written order does not conform to the oral pronouncement of judgment the latter controls).
Thus, at bar we reverse and remand for the lower court to correct the written sentence to conform with the court’s oral pronouncement, thereby granting Rivera credit for all the time served since the original sentencing on November 20, 1986. Rivera need not be present at the resentencing.
GUNTHER, WARNER and POLEN, JJ., concur.
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Poole v. State, 669 So. 2d 1136 (Fla. 4th DCA 1996)…dly weapon. We also agree with appellant that the trial court erred in failing to separately provide credit for jail time and prison time which appellant previously served in connection with these charges and his conviction.1 See Rivera v. State, 638 So. 2d 148 (Fla. 4th DCA 1994). Although a trial court may delegate to the Department of Corrections the task of calculating the amount of prison time to be credited, the trial court’s order must specifically adjudge that the defendant is entitled to receive i…
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Pryor W. Hall v. State, 689 So. 2d 448 (Fla. 4th DCA 1997)…tion to their inclusion. State v. Montague, 682 So. 2d 1085 (Fla.1996). However, in resentencing appellant, the trial court failed to give the appellant credit for all of the time he had spent in prison on his original sentence. See Rivera v. State, 638 So. 2d 148 (Fla. 4th DCA 1994). We therefore remand to correct the sentence to grant appellant credit for all time served since the original sentencing. Appellant is not required to be present when the trial court corrects the sentence. STONE, WARNER and P…
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Sanchez v. State (Fla. 5th DCA 2023)…esentenced. Although the trial court has noted its intention to correct the failure to note that the judgment was to be “nunc pro tunc,” that error has not yet been corrected. Appellant need not be present for such correction. See Rivera v. State, 638 So. 2d 148, 149 (Fla. 4th DCA 1994). AFFIRMED; REMANDED WITH INSTRUCTIONS. EDWARDS, C.J., WALLIS, and PRATT, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. ______…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Rivera v. State, 547 So. 2d 140 (Fla. 4th DCA 1989)
- Howard v. State, 591 So. 2d 1067 (Fla. 4th DCA 1991)
- Hampton v. State, 421 So. 2d 775 (Fla. 5th DCA 1982)
- Glispy v. State, 608 So. 2d 589 (Fla. 4th DCA 1992)
- Donnie Gene Craig v. State, 608 So. 2d 589 (Fla. 4th DCA 1992)