WADE CARTER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the appellant must wait for a ruling from the Florida Supreme Court on his earlier sentence challenge before refiling his motion for jail time credit.
Wade Carter appealed an order summarily denying his motion for jail time credit on concurrent sentences. Carter had multiple prior unsuccessful challe…
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THOMPSON, J.,
Wade Carter appeals from an order which summarily denied his Rule 3.800(a) motion which asserted that the trial court erred in not awarding proper jail time credit on all of his concurrent sentences.
Carter has unsuccessfully challenged his convictions and sentences numerous times before.1 Currently, Carter has an appeal pending before the Florida Supreme Court. Carter v. State, Case No. 99,501. In that case, he appeals this court’s decision, Carter v. State, 704 So. 2d 1068 (Fla. 5th DCA 1997), which affirmed his sentence as an habitual offender. We held that a Rule 3.800(a) motion cannot be used to contest an improper habitualization. We recognize that this decision has been abrogated. See Summers v. State, 747 So. 2d 987 (Fla. 5th DCA 1999).
Because Carter’s sentences are currently under review by the Florida Supreme Court, we hold that Carter must wait until the court rules on the legality of his sentences in the earlier proceedings. Therefore, we affirm the appealed order without prejudice to refile his motion in the trial court when the supreme court rules on his earlier 3.800 challenge.
AFFIRMED.
COBB and HARRIS, JJ., concur. . See Carter v. State, 510 So. 2d 930 (Fla. 5th DCA 1987), rev. denied, 519 So. 2d 986 (Fla.1987) (direct appeal); Carter v. State, 551 So. 2d 475 (Fla. 5 th DCA 1989) (Rule 3.800(a)); Carter v. State, Case No. 90-608 (Fla. 5th DCA June 9, 1990)(Habeas corpus petition); Carter v. State, 559 So. 2d 1151 (Fla. 5th DCA 1990)(Rule 3.850).
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Carter v. State, 786 So. 2d 1173 (Fla. 2001)…re Rule 9.331, Determination of Causes by a District Court of Appeal En Banc, Fla. Rules of Appellate Procedure, 416 So. 2d 1127, 1128 (Fla. 1982), the Fifth District recognized that its decision in Carter had been “abrogated.” See Carter v. State, 747 So. 2d 483, 484 (Fla. 5th DCA 2000) ("Carter II") (citing Summers, 747 So. 2d at 987). Because we properly accepted this case based on our conflict jurisdiction, because neither party has asked us to dismiss this review proceeding, and because the Fifth Distri…
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Sneed v. State, 754 So. 2d 53 (Fla. 1st DCA 2000)…50, 1152 n. 4 (Fla. 2d DCA 1997). We must, therefore, reverse and remand to the trial court with instructions to strike Appellant’s habitual violent offender status under Counts I and II. State v. Mancino, 714 So. 2d 429 (Fla.1998); Carter v. State, 747 So. 2d 483 (Fla. 5th DCA 2000); Summers v. State, 747 So. 2d 987 (Fla. 5th DCA 1999). Appellant’s sentence under Counts III and IV is not affected by this ruling. Appellant need not be present for this action by the trial court. Suggs v. State, 681 So. 2d 870…
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Authorities Cited
- Timothy v. Summers, 747 So. 2d 987 (Fla. 5th DCA 1999)
- Carter v. State, 510 So. 2d 930 (Fla. 5th DCA 1987)
- Salser v. State, 704 So. 2d 1068 (Fla. 5th DCA 1997)
- Carter v. State, 704 So. 2d 1068 (Fla. 5th DCA 1997)