DUANE DAVIDSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Duane Davidson appealed his resentencing for attempted first-degree murder, challenging the trial court's failure to award him credit for time served between his initial sentencing and resentencing. The appellate court affirmed the trial court's award of 121 days for pre-sentencing custody but reversed and remanded regarding prison credit earned between the two sentencing dates.
A defendant resentenced through no fault of his own is entitled to credit for all actual time served and gain time earned during the initial prison term. The trial court's failure to reflect such credit in the sentencing documents or record requires remand for the court to either award the credit or attach portions of the record conclusively refuting the appellant's allegations.
[1] A trial court must attach portions of the record that conclusively refute a legally sufficient postconviction claim or hold an evidentiary hearing.
[2] A trial court errs in summarily denying a postconviction claim by relying on court records not made part of the case record or by failing to follow proper procedure for t…
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Join FLexlaw to unlock all legal intelligence“Upon resentencing, defendants like appellant who have been resentenced through no fault of their own are entitled upon resentencing to credit for all actual time served and gain time earned during their initial prison term.”
Establishes the governing legal standard for prison credit in resentencing cases under Florida law.
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Join FLexlaw to unlock all legal intelligenceDavidson was initially sentenced to 12 years for attempted first-degree murder. The trial court set aside this sentence and resentenced him to serve "…
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PER CURIAM.
Duane Davidson, the appellant, was initially sentenced to 12 years in prison for attempted first-degree murder. The trial court set aside this sentence, however, and resentenced him to serve “the full term of 12 years” in prison. The appellant then filed this rule 3.800(a) motion seeking elimination of the phrase “full term” from his sentence. He also alleged that the trial court failed to award him sufficient credit for time served in jail prior to sentencing and from his original sentencing to his re-sentencing. The trial court granted relief on the second claim and awarded the appellant a total of 121 days for time served prior to his original sentencing. However, the trial court did not address the appellant’s other two claims. As the first claim is without merit, we address only the appellant’s third claim.
The appellant alleges in his third claim that he is entitled to prison credit from his initial sentencing on May 20, 1996, to his resentencing on November 25, 1996. Upon resentencing, defendants like appellant who have been resentenced through no fault of their own are entitled upon resentencing to credit for all actual time served and gain time earned during their initial prison term. See § 921.161(2), Fla. Stat. (1995); Corpus v. State, 744 So. 2d 594 (Fla. 2d DCA 1999); Brown v. State, 584 So. 2d 209 (Fla. 1st DCA). Indeed, the trial court stated at the resentencing hearing that the appellant would be “entitled for any credit for gain time and time that you have served since you were sentenced on May the 20th, 1996.” However, neither the sentencing form nor the record on review reflects such provision of prison credit. Accordingly, we reverse and remand for the trial court to consider this claim on the merits or to attach portions of the record that conclusively refute the appellant’s allegations.
AFFIRMED in part, REVERSED in part, and REMANDED with instructions.
BARFIELD, C.J., WOLF and POLSTON, JJ., concur.
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Citator
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Drymon v. State, 878 So. 2d 438 (Fla. 1st DCA 2004)…the 710 days of credit for time served. As the trial court awarded petitioner 710 days credit for time served in prison prior to resentencing, the credit should include any unforfeited gain time accrued prior to resentencing. Cf. Davidson v. State, 780 So. 2d 984, 985 (Fla. 1st DCA 2001) (stating that defendants “who have been resentenced through no fault of their own are entitled upon resentencing to credit for all actual time served and gain time earned during their initial prison term”); Jones v. State, 6…
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Sullivan v. Jones, 165 So. 3d 26 (Fla. 1st DCA 2015)…t merit.4 When an individual is resen-tenced and formerly concurrent sentences are then to be served consecutively, inmates must receive credit on each newly-consecutive sentence for “all actual time served and gain time earned.” Davidson v. State, 780 So. 2d 984, 985 (Fla. 1st DCA 2001) (emphasis added); see also State v. Rabedeau, 2 So. 3d 191, 193-94 (Fla.2009). This Court has further explained that “the credit should include any unforfeited gain time accrued prior to resentencing.” Drymon v. State, 878 S…
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Rodas v. State, 65 So. 3d 98 (Fla. 1st DCA 2011)…d be reversed and remanded. We therefore reverse and remand for the trial court to either attach documents conclusively refuting the appellant’s prison credit claim, or for the court to award the appellant the credit he seeks. See Davidson v. State, 780 So. 2d 984 (Fla. 1st DCA 2001) (stating that upon resentencing a defendant is entitled to prison credit for time already served). REVERSED AND REMANDED. VAN NORTWICK, PADOVANO, and HAWKES, JJ., concur.…
Authorities Cited
- Corpus v. State, 744 So. 2d 594 (Fla. 2d DCA 1999)
- Brown v. State, 584 So. 2d 209 (Fla. 1st DCA 1991)