GARY JOE BROWN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Gary Joe Brown appealed the denial of his motion to correct for jail credit under Florida Rule of Criminal Procedure 3.800(a). The court held that his claim was not cognizable under rule 3.800 because the sentence was not beyond the statutory maximum, but affirmed without prejudice to allow him to file under rule 3.850.
Brown's claim is not cognizable under rule 3.800(a) because the claim does not allege an illegal sentence (one beyond the statutory maximum). The trial court properly denied the motion, but without prejudice to Brown filing under rule 3.850.
[1] A motion to correct jail credit under Florida Rule of Criminal Procedure 3.800(a) is cognizable only for claims that a sentence is beyond the statutory maximum.
[2] Claims that a sentence is unlawful, but not illegal, are properly remedied through a motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850.
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Join FLexlaw to unlock all legal intelligence“Appellant's claim, as raised, is not cognizable pursuant to rule 3.800, and therefore, we affirm the trial court's denial of postconviction relief.”
The court's holding that the jail credit claim cannot be pursued under rule 3.800(a)
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Join FLexlaw to unlock all legal intelligenceBrown was arrested on August 28, 1994, and released on October 5, 1994, earning 39 days of jail credit. Upon violation of probation, he was resentence…
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PER CURIAM.
The appellant challenges an order by which his motion to correct for jail credit, pursuant to Florida Rule of Criminal Procedure 3.800(a), was denied. Appellant claimed that upon violation of probation, and resentencing to 29.6 months of incarceration, he was not awarded 39 additional days of jail credit to which he is entitled for the time served in jail from his original arrest on August 28, 1994, until his release on October 5, 1994. Appellant’s claim, as raised, is not cognizable pursuant to rule 3.800, and therefore, we affirm the trial court’s denial of postconvietion relief. We do so without prejudice to appellant filing a motion for postcon-viction relief pursuant to rule 3.850, Florida Rules of Criminal Procedure.
The supreme court has clarified the distinctions between an “illegal sentence,” properly remedied through a 3.800 motion, and an “unlawful sentence,” properly corrected under rule 3.850, and limited “illegal sentence” claims cognizable under 3.800(a), to claims that a sentence is beyond the statutory maximum. King v. State, 681 So. 2d 1136 (Fla. 1996); see Davis v. State, 661 So. 2d 1193 (Fla.1995) and State v. Callaway, 658 So. 2d 983 (Fla.1995). It is clear that appellant’s sentence of 29.6 months, even without credit he claims, is not beyond the statutory maximum for a third degree felony, and therefore denial of the credit did not result in a “illegal sentence” as defined under King, supra. See Berry v. State, 684 So. 2d 239 (Fla. 1st DCA 1996) (prisoner not alleging denial of credit caused him to be sentenced to period in excess of statutory maximum, is not entitled to relief under rule 3.800). We, therefore, affirm the trial court’s denial of appellant’s 3.800 motion.
The trial court predicated its denial on the mistaken belief that it had previously ruled on the same claim in a prior order. The prior order attached to the order on appeal, however, appears to address a jail credit claim for a different period of time than was addressed in appellant’s rule 3.800 motion. Further, the record on appeal is silent as to whether appellant would be entitled to jail credit in the instant claim, and his motion was filed within the two-year time limit enumerated in rule 3.850(b). We, therefore, af firm without prejudice to appellant timely filing a motion under rule 3.850.
BOOTH, WOLF and VAN NORTWICK, JJ., concur.
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Williams v. State, 705 So. 2d 1032 (Fla. 2d DCA 1998)…attacks on a trial court’s determination of credit for time served may only be raised collaterally in a motion filed pursuant to Florida Rule of Criminal Procedure 3.850, citing Ramos v. State, 697 So. 2d 231 (Fla. 5th DCA 1997), and Brown v. State, 700 So. 2d 393 (Fla. 1st DCA 1997). Reliance on the foregoing cases, however, overlooks Swyck v. State, 693 So. 2d 618 (Fla. 2d DCA), review granted, 699 So. 2d 1376 (Fla.1997), in which this court acknowledged conflict with three district courts of appeal adherin…
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Vanderblomen v. State, 709 So. 2d 144 (Fla. 1st DCA 1998)…hose district courts of appeal, including this one, which have recognized that' such claims can no longer be raised in 3.800(a) motions also have explicitly recognized that such claims can still be raised in 3.850 motions. See, e.g., Brown v. State, 700 So. 2d 393, 393-94 (Fla. 1st DCA 1997); Williams v. State, 699 So. 2d 845 (Fla. 4th DCA 1997); Willey v. State, 699 So. 2d 818 (Fla. 1st DCA 1997); Ramos, 697 So. 2d at 232; Butler v. State, 695 So. 2d 857, 858 (Fla. 4th DCA 1997); Hires v. State, 688 So. 2d 4…
Authorities Cited
- Davis v. State, 661 So. 2d 1193 (Fla. 1995)
- State v. Callaway, 658 So. 2d 983 (Fla. 1995)
- King v. State, 681 So. 2d 1136 (Fla. 1996)
- Artis Berry v. State, 684 So. 2d 239 (Fla. 1st DCA 1996)