JOHN DAILY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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John Daily appeals the denial of his motion for jail time credit. The Fourth District affirms the denial but without prejudice, finding that Daily's motion failed to comply with pleading requirements but allowing him to refile with proper allegations and supporting record references.
The court affirmed the denial of Daily's motion but without prejudice. The plea sheet did not establish a specific and voluntary waiver of jail time credit. However, Daily's motion failed to meet pleading requirements by not affirmatively alleging that court records demonstrate entitlement to relief. Daily may refile either a properly pleaded Rule 3.800 motion or a properly sworn Rule 3.850 motion.
[1] A waiver of jail time credit must be specific, voluntary, and clearly shown on the record.
[2] A motion for jail time credit must affirmatively allege that court records demonstrate entitlement to relief.
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Join FLexlaw to unlock all legal intelligence“waiver of jail time credit must be specific, voluntary, and clearly shown on the record”
Establishes the standard for valid waivers of jail time credit under Silverstein v. State
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Join FLexlaw to unlock all legal intelligenceDaily was sentenced to two years imprisonment and filed a motion seeking additional jail time credit for time allegedly spent in Dade County Jail on a…
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PER CURIAM.
Contrary to the conclusion reached by the lower court, the plea sheet attached to the lower court’s order does not establish a specific and voluntary waiver of any jail time credit to which appellant may be entitled for time allegedly spent in the Dade County Jail on a warrant for the Palm Beach case. See Silverstein v. State, 654 So. 2d 1040, 1041 (Fla. 4th DCA 1995) (waiver of jail time credit must be specific, voluntary, and clearly shown on the record).
However, contrary to the pleading requirements of State v. Mancino, 714 So. 2d 429, 433 (Fla.1998), appellant’s motion for jail time credit does not affirmatively allege that the court records demonstrate entitlement to relief. See also Toro v. State, 719 So. 2d 947, 948 (Fla. 4th DCA 1998) (affirming denial of Rule 3.800 motion without prejudice to file a new motion alleging “where in the record the information can be located and explaining] how the record demonstrates entitlement to the relief requested”).
As such, the motion as it stands cannot be resolved as a Rule 3.800(a) motion to correct illegal sentence. See Mancino, 714 So. 2d at 433; Fla. R.Crim.P. 3.800(a).
Nor can the motion properly be treated in the alternative as a motion for postconviction relief under Rule 3.850, as the motion is not under oath. See Fla.R.Crim.P. 3.850(c) (postconviction motion challenging conviction or sentence must be under oath).
Accordingly, we affirm the order denying the motion for jail time credit, but without prejudice to file either (1) a Rule 3.800 motion that affirmatively demonstrates on the face of the record entitlement to additional jail time credit or, alternatively, (2) a properly sworn Rule 3.850 motion challenging the sentence based on the failure to award jail time credit. If appellant, who was sentenced to two years imprisonment, is correct in his assertion that he is entitled to almost nine months of additional jail time credit, his legal sentence may have already expired. Accordingly, the lower court is directed to resolve expeditiously any renewed postconviction motion filed by appellant.
Clerk is directed to issue mandate concurrently with this opinion.
POLEN, TAYLOR and HAZOURI, JJ„ concur.
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Woody v. State, 993 So. 2d 1158 (Fla. 4th DCA 2008)…d 429, 433 (Fla.1998). We affirm without prejudice to Woody’s filing either a rule 3.800 motion that affirmatively demonstrates, on the face of the record, his entitlement to additional credit, or a properly sworn rule 3.850 motion. Daily v. State, 750 So. 2d 37 (Fla. 4th DCA 1999). Because the time for filing a rule 3.850 motion expired while the instant motion was pending below, any such rule 3.850 motion must be filed within thirty days of the date of the mandate to be issued in this case. See generally…
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Dennis v. State, 9 So. 3d 761 (Fla. 1st DCA 2009)…judice to appellant’s raising this claim in a properly sworn rule 3.850 motion. See Lewis v. State, 926 So. 2d 437 (Fla. 1st DCA 2006) (court cannot treat rule 3.800(a) motion as rule 3.850 motion where motion is not properly sworn); Daily v. State, 750 So. 2d 37 (Fla. 4th DCA 1999) (affirming denial of 3.800(a) motion seeking jail credit without prejudice to defendant’s filing facially sufficient 3.800(a) motion demonstrating where in the record entitlement to relief can be shown or for defendant to file pr…
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LEE v. State, 754 So. 2d 74 (Fla. 4th DCA 2000)…er Florida Rules of Criminal Procedure 3.850(b). The trial court quite properly denied the motion as legally insufficient and time-barred. In conformance with our decisions in Quartucci v. State, 736 So. 2d 1247 (Fla. 4th DCA 1999), Daily v. State, 750 So. 2d 37 (Fla. 4th DCA 1999) and Carridine v. State, 741 So. 2d 616 (Fla. 4th DCA 1999), the denial, however, should have been without prejudice to Appellant to file a new motion correcting the pleading deficiency. Accordingly, our affirmance is without prej…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Mancino, 714 So. 2d 429 (Fla. 1998)
- Hardy v. Hon. Taylor Douglas, 719 So. 2d 947 (Fla. 5th DCA 1998)
- Silverstein v. State, 654 So. 2d 1040 (Fla. 4th DCA 1995)