LUIS MARIO RUBALCABA, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that the defendant's claim regarding sentence restructuring was barred by res judicata, but his claim for proper credit for time served was valid.
The defendant's sentence was restructured after postconviction relief was granted, and he later filed a motion to correct an illegal sentence. The def…
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PER CURIAM.
Luis Mario Rubalcaba appeals an order denying his motion to correct illegal sentence, dated June 12, 1998, and amendment thereto. We affirm in part and reverse in part.
In 1997, the trial court granted postconviction relief to defendant-appellant Rubalcaba, finding merit in defendant’s claim that his sentence entered pursuant to a negotiated plea exceeded the legal maximum. The trial court restructured concurrent sentences to consecutive sentences to achieve the original sentencing intent. This court affirmed on appeal, rejecting defendant’s argument that restructuring was improper. See Rubalcaba v. State, 706 So. 2d 1380 (Fla. 3d DCA 1998).
In his 1998 motion to correct illegal sentence, defendant again contends that the trial court had no authority to restructure his sentences so as to accomplish the original sentencing intent. That issue was decided against defendant in the prior appeal. See id. Defendant’s argument is thus barred by the doctrine of res judicata. Defendant’s claim that he should have been present at the 1997 resentencing is procedurally barred and without merit.
Defendant next argues, and the State concedes, that defendant has not been given proper credit for time served. See State v. Mancino, 714 So. 2d 429 (Fla. 1998). We therefore reverse the 1998 order denying postconviction relief in part, and remand for entry of corrected sentencing orders to reflect proper credit for time served.
Affirmed in part, reversed in part, and remanded for further proceedings consistent herewith.
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Walker v. State, 742 So. 2d 342 (Fla. 3d DCA 1999)…dholt v. State, 683 So. 2d 596 (Fla. 3d DCA 1996). The Trowell decision has also necessarily disapproved this court's decisions, to the extent they disallow belated appeals, in Canty v. State, 730 So. 2d 385, 386 (Fla. 3d DCA 1999); Canton v. State, 729 So. 2d 994 (Fla. 3d DCA 1999); Ponce v. State, 722 So. 2d 838, 839 (Fla. 3d DCA 1998); Battie v. Singletary, 718 So. 2d 323, 324 (Fla. 3d DCA 1998); Gonzalez v. Singletary, 713 So. 2d 1057, 1058 (Fla. 3d DCA) review granted, 719 So. 2d 892 (Fla.1998); and Whit…
Authorities Cited
- State v. Mancino, 714 So. 2d 429 (Fla. 1998)
- Adams v. State, 706 So. 2d 1380 (Fla. 3d DCA 1998)