ROBERT L. HOWARD, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Robert Howard appeals his conviction for drug offenses, challenging the trial court's failure to award him credit for time served on one sentence when he received a new sentence on different counts. The court affirms, holding that the credit issue was not preserved for appeal because Howard failed to raise it at sentencing or through a timely motion.
The court holds that a defendant cannot challenge a failure to award jail or prison credit on appeal unless the issue was either objected to at sentencing or raised through a rule 3.800(b) motion filed within thirty days of sentencing. Because Howard did not preserve this issue below, the appeal cannot proceed on this ground.
[1] A defendant must object at sentencing or file a motion within thirty days of sentencing to challenge the failure to award credit for time served.
[2] Failure to preserve the issue of credit for time served at sentencing or through a timely motion bars appellate review.
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Join FLexlaw to unlock all legal intelligence“In order to challenge a failure to award jail or prison credit, a defendant must either object at the sentencing hearing or file a rule 3.800(b) motion within thirty days of sentencing.”
Establishes the mandatory preservation requirement for credit claims
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Join FLexlaw to unlock all legal intelligenceHoward pleaded guilty to two counts of possession of cocaine with intent to sell and two counts of sale of cocaine. He was sentenced to two concurrent…
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PER CURIAM.
In this direct criminal appeal, the appellant challenges the failure to award him credit for time served pursuant to Tripp v. State, 622 So. 2d 941 (Fla.1993). Because appellant failed to raise this issue either at sentencing or through a timely motion under Florida Rule of Criminal Procedure 3.800(b), we affirm.
Appellant pled guilty to two counts of possession of cocaine with the intent to sell and two counts of sale of cocaine. He was sentenced to two concurrent three-year terms of incarceration on the possession, counts to be followed by two five-year terms of probation on the sale counts. After serving the incar-cerative portion of his sentence, appellant violated probation and was sentenced to concurrent five year terms of incarceration on the sale counts. The trial court failed to award him any credit for the time he previously served on the possession counts.
While it seems apparent from the face of the record that appellant did not receive the credit he was due under Tripp, he cannot raise this issue on appeal because it was not preserved below. See Larson v. State, 700 So. 2d 388 (Fla. 1st DCA 1997); Johnson v. State, 697 So. 2d 1245 (Fla. 1st DCA 1997); Middleton v. State, 689 So. 2d 304 (Fla. 1st DCA 1997); Chojnowski v. State, 705 So. 2d 915 (Fla. 2d DCA 1997); sec. 924.051(3), Fla. Stat. (Supp.1996).1 In order to challenge a failure to award jail or prison credit, a defendant must either object at the sentencing hearing or file a rule 3.800(b) motion within thirty days of sentencing.2
We also reject appellant’s constitutional attacks on section 924.051(3). See Amendments to the Florida Rules of Appellate Procedure, 685 So. 2d 773, 774-75 (Fla.1996); Neal v. State, 688 So. 2d 392 (Fla. 1st DCA 1997). Accordingly, we affirm.
BARFIELD, C.J., JOANOS, J., and SMITH, Senior Judge, concur. . Prior to the enactment of section 924.051, we could have corrected an apparent error with a remand to the trial court. See State v. Montague, 682 So. 2d 1085, 1088 (Fla.1996); Davis v. State, 661 So. 2d 1193, 1197 (Fla.1995); Taylor v. State, 601 So. 2d 540, 541-2 (Fla.1992); State v. Rhoden, 448 So. 2d 1013, 1016 (Fla.1984).
. The only exception is when the failure to award credit results in a sentence that exceeds the statutory maximum. Section 924.051(3) does not bar the appeal of an unpreserved prejudicial error if that error is "fundamental.” A sentence in excess of the statutory maximum is illegal and constitutes “fundamental error.” See Sanders v. State, 698 So. 2d 377 (Fla. 1st DCA 1997).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited (13 total)
- Davis v. State, 661 So. 2d 1193 (Fla. 1995)
- Tripp v. State, 622 So. 2d 941 (Fla. 1993)
- State v. Learnhart Rhoden, 448 So. 2d 1013 (Fla. 1984)
- Amendments to the Florida Rules of Appellate Procedure, 685 So. 2d 773 (Fla. 1996)
- Neal v. State, 688 So. 2d 392 (Fla. 1st DCA 1997)
- State v. Montague, 682 So. 2d 1085 (Fla. 1996)
- Taylor v. State, 601 So. 2d 540 (Fla. 1992)
- Arlecia Michelle Middleton v. State, 689 So. 2d 304 (Fla. 1st DCA 1997)
- Sanders v. State, 698 So. 2d 377 (Fla. 1st DCA 1997)
- Chojnowski v. State, 705 So. 2d 915 (Fla. 2d DCA 1997)