TIMOTHY JAMES MULLIGAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court affirmed the trial court's finding that Mulligan violated probation and its sentencing, and rejected his unpreserved claim that he failed to receive credit for time served because the issue was not raised at sentencing or by motion under Rule 3.800(b).
A sentencing error regarding credit for time served cannot be raised on direct appeal unless it was first brought to the trial court's attention at sentencing or by timely motion under Florida Rule of Criminal Procedure 3.800(b).
[1] A sentencing error regarding credit for time served is not properly raised on direct appeal unless the issue was presented to the trial court at sentencing or by motion u…
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Join FLexlaw to unlock all legal intelligenceTimothy James Mulligan was found to have violated the terms of his probation and received a sentence for that violation. He claimed he was not given c…
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MONACO, J.
We affirm the trial court’s finding that the appellant, Timothy James Mulligan, violated the terms of his probation, as well as the sentence for that violation. Mr. Mulligan also asserts that he was not given credit for the time he actually served in prison for the incarcerative portion of his split sentence. See Sainvilus v. State, 689 So. 2d 1261 (Fla. 3d DCA 1997). We affirm in this respect, as well, because the error, if any, is unpreserved.
A sentencing error is not appropriately raised on appeal unless it has first been brought to the attention of the trial court either at the time of sentencing or by motion for relief pursuant to Florida Rules of Criminal Procedure 3.800(b). See Fla. R.App. P. 9.140(e); State v. Hamner, 816 So. 2d 810, 812 (Fla. 5th DCA 2002). Rule 3.800(b)(2) requires the motion to be filed before the first brief of the party is served. As Mr. Mulligan failed to use either alternative method for relief, he is precluded from raising this issue in his direct appeal. He may, however, seek appropriate post-conviction relief. See Maddox v. State, 760 So. 2d 89 (Fla.2000); Hayden v. State, 833 So. 2d 275 (Fla. 5th DCA 2002); Durr v. State, 773 So. 2d 644 (Fla. 5th DCA 2000).
AFFIRMED.
GRIFFIN and THOMPSON, JJ., concur.
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Lucky v. State, 25 So. 3d 691 (Fla. 4th DCA 2010)…. 2d 713, 716 (Fla. 2d DCA 2008), evidence that the cell phone was purchased for $450 only three months before the theft and that at the time of the theft, it was in “brand new,” working condition, was sufficient to establish value. Smith v. State, 955 So. 2d 1227, 1228 (Fla. 5th DCA 2007), tips- the scale for reversal. There the issue was whether the state failed to prove that the value of a stolen computer was $300 or more. The victim testified that the computer was a Dell laptop, less than a year old, whic…
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K.W. v. State, 983 So. 2d 713 (Fla. 2d DCA 2008)…mum value” of the phone was “so obvious as to defy contradiction” and “reasonable persons could not doubt that the value of the” phone was at least $100. Jackson v. State, 413 So. 2d 112,114-15 (Fla. 2d DCA 1982). K.W.’s reliance on Smith v. State, 955 So. 2d 1227, 1228-29 (Fla. 5th DCA 2007), is misplaced. The Smith court held that evidence that a stolen laptop computer was only six months old, was purchased for $1200, and was in working order was insufficient to establish that the laptop was worth more than…
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A.D. v. State, 30 So. 3d 676 (Fla. 3d DCA 2010)…State, 994 So. 2d 378 (Fla. 3d DCA 2008). Because the value of the stolen items is an essential element of the offense, the value must be established beyond a reasonable doubt. See Jackson v. State, 23 So. 3d 206 (Fla. 4th DCA 2009); Smith v. State, 955 So. 2d 1227 (Fla. 5th DCA 2007); Toler v. State, 779 So. 2d 594 (Fla. 2d DCA 2001). An estimate of the value of the items, without more, is insufficient. See Jones v. State, 958 So. 2d 585 (Fla. 2d DCA 2007); Sellers v. State, 838 So. 2d 661 (Fla. 1st [*678] DC…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Maddox v. State, 760 So. 2d 89 (Fla. 2000)
- Durr v. State, 773 So. 2d 644 (Fla. 5th DCA 2000)
- State v. Hamner, 816 So. 2d 810 (Fla. 5th DCA 2002)
- Sainvilus v. State, 689 So. 2d 1261 (Fla. 3d DCA 1997)
- Marques Mandred Hayden v. State, 833 So. 2d 275 (Fla. 5th DCA 2002)