CLEON L. SMITH, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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Smith seeks a belated appeal of an order denying a Rule 3.800 motion for gain time credit. The court holds that a defendant cannot raise the same issue in a successive Rule 3.800 motion after failing to appeal the first denial. The court affirms the denial but discusses the substantive right to gain time credit and potential habeas corpus remedies.
A defendant may not raise the same issue in a successive Rule 3.800 motion if the lower court has already denied relief on that issue and the defendant failed to appeal the first denial. The unappealed first order is dispositive, and therefore the second denial is affirmed.
[1] A defendant may not raise the same issue in a successive Rule 3.800 motion if a prior Rule 3.800 motion on the same issue was denied and the defendant failed to appeal th…
[2] A resentencing provision that grants credit for "all time previously served ... …
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Join FLexlaw to unlock all legal intelligence“where, as here, a defendant raises an issue under Rule 3.800, the lower court denies relief and the defendant fails to appeal, he may not later raise the same issue in another Rule 3.800 motion”
Establishes the core procedural holding that successive Rule 3.800 motions on the same denied issue are not permitted after failure to appeal the first denial
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Join FLexlaw to unlock all legal intelligenceSmith was resentenced after violation of probation under a split sentence. He filed a Rule 3.800 motion claiming improper gain time credit, which was …
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GRIFFIN, Judge.
Petitioner seeks belated appeal of an order denying a 3.800 motion. The threshold issue presented is whether the defendant may obtain relief, based on a claim that he was not given proper gain time credit, by a successive Rule 3.800 motion. While it may be correct that Rule 3.800 does not prohibit successive motions, we hold that where, as here, a defendant raises an issue under Rule 3.800, the lower court denies relief and the defendant fails to appeal, he may not later raise the same issue in another Rule 3.800 motion. In this case, the second Rule 3.800 motion was also denied and petitioner seeks belated review of the order on the second motion. We affirm the denial because the unappealed first order was dis-positive.
We observe, however, that at least two intermediate appellate courts of this state have clearly ruled that when a defendant, who is resentenced after violation of probation under a split sentence, is given credit for “all time previously served ... in the Department of Corrections,” this provision is sufficient to require the Department of Corrections to perform its “time served” calculations by including the previously awarded gain time to which a defendant is entitled under State v. Green, 547 So. 2d 925 (Fla.1989). Slay v. Singletary, 676 So. 2d 456 (Fla. 1st DCA 1996); Smith v. State, 659 So. 2d 1222 (Fla. 4th DCA 1995); see also Tribute v. State, 21 Fla.
L. Weekly D1989 (Fla. 3d DCA Sept. 4, 1996). This court in Bacon v. State, 647 So. 2d 332 (Fla. 5th DCA 1994), found such a provision to be inadequate when the issue was raised on direct appeal. It is not suggested by our opinion, however, that the Department of Corrections could refuse to give legally required gain time credit solely because the gain time was not separately mentioned. Nor did we suggest that the gain time was not awardable if not raised on appeal. If some Florida inmates entitled to this gain time will get it without a corrected judgment, then all inmates should. This appears to be the effect of the Supreme Court of Florida’s recent decision in Forbes v. Singletary, 684 So. 2d 173 (Fla.1996).
If petitioner is entitled to this gain time and yet he is unsuccessful in obtaining this credit through administrative or judicial remedies against the Department of Corrections, see Duggan v. Department of Corrections, 665 So. 2d 1152 (Fla. 5th DCA 1996), then, on the date he would otherwise be eligible for release, had proper gain time been awarded, petitioner may apply for a writ of habeas corpus. Because of petitioner’s failure to appeal the prior order, however, this court can offer no remedy.
PETITION GRANTED; AFFIRM.
PETERSON, C.J., and COBB, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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State v. Antoine L. McBRIDE, 848 So. 2d 287 (Fla. 2003)…d, only precludes a defendant from rearguing in a successive rule 3.800 motion the same issue argued in a prior motion. This analysis is consistent with the application of rule 3.800 in the district courts of appeal. For example, in Smith v. State, 685 So. 2d 912, 912 (Fla. 5th DCA 1996), the Fifth District considered “whether the defendant may obtain relief, based on a claim that he was not given proper gain time credit, by a successive rule 3.800 motion.” The court concluded that “[w]hile it may be correct…
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Green v. State, 698 So. 2d 575 (Fla. 5th DCA 1997)…ile a petition for writ of mandamus in the circuit court within the jurisdiction where he is incarcerated to compel the Department to award the proper credit under Green. See, e.g., Speed v. State, 686 So. 2d 748 (Fla. 5th DCA 1997); Smith v. State, 685 So. 2d 912 (Fla. 5th DCA 1996). Mandamus in this court is inappropriate. We deny the petition for writ of mandamus without prejudice to allow Green to seek an administrative remedy. GOSHORN and ANTOON, JJ., concur.…
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Jenkins v. State, 749 So. 2d 527 (Fla. 1st DCA 1999)…e from that for which credit was sought in the rule 3.850 motion in this case — April 1, 1993, through April 12, 1993. While a defendant may not raise the same illegal sentencing issue in successive postconviction motions, see, e.g., Smith v. State, 685 So. 2d 912 (Fla. 5th DCA 1996), we have found no authority which prohibits a defendant from filing a timely rule 3.850 motion claiming an entitlement to additional sentence credit subsequent to a denial of a rule 3.800(a) motion claiming sentence credit for a…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Green, 547 So. 2d 925 (Fla. 1989)
- Forbes v. Singletary, 684 So. 2d 173 (Fla. 1996)
- Genorval Slay v. Singletary, 676 So. 2d 456 (Fla. 1st DCA 1996)
- Massengale v. RAY, 665 So. 2d 1152 (Fla. 3d DCA 1996)
- Bacon v. State, 647 So. 2d 332 (Fla. 5th DCA 1994)
- Smith v. State, 659 So. 2d 1222 (Fla. 4th DCA 1995)