CARLOS PONCE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 4th DCA | 2009-12-23
No. 4D09-1606
GROSS, C.J., TAYLOR and GERBER, JJ., concur.
24 So. 3d 724 Florida District Court of Appeal, Fourth District (2009) Positive Treatment
Cited by 4 cases

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Synopsis

Ponce appeals the trial court's summary denial of his motion to correct an illegal sentence under Florida Rule of Criminal Procedure 3.800(a), seeking additional jail time credit for periods served in Miami-Dade County. The appellate court affirmed the denial in part and affirmed without prejudice in part, allowing Ponce to refile properly for the April 2005 period but denying credit for the November 2006 to July 2007 period.


Holding

The court affirmed the denial of credit for the April 1-15, 2005 period without prejudice, requiring the defendant to properly allege where in the case record information demonstrating such jail time is located. The court affirmed the denial of credit for the November 29, 2006 to July 25, 2007 period because the defendant was in custody for unrelated Miami-Dade charges during that time and the Broward sentence was not made concurrent with any Miami-Dade sentence.


Headnotes

[1] A motion to correct illegal sentence under Rule 3.800(a) must allege where in the court record the information demonstrating entitlement to relief can be located.

[2] A defendant is not entitled to jail time credit for time served in custody on unrelated charges in another jurisdiction, even if also subject to a warrant in the sentenci…

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Key Quotes

“error in trial court's award of jail time credit can be raised at any time in a rule 3.800(a) motion "when it is affirmatively alleged that the court records demonstrate on their face an entitlement to relief"”

Establishes the standard for properly pleading jail time credit claims under Rule 3.800(a), requiring allegation of where in the record evidence of entitlement appears

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Facts & Procedural History

Ponce was arrested in Miami-Dade County on April 1, 2005 for violating probation on a Broward County case and transported to Broward County on April 1…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

The defendant below appeals an order of the Broward County circuit court summarily denying his motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a). In the motion, the defendant sought additional credit for jail time served. We affirm in part and affirm without prejudice in part.

In his motion, the defendant alleges that he was arrested in Miami-Dade County on April 1, 2005, for violating probation on a Broward County case. He further alleges he was transported to Broward County on April 15, 2005, and was released on modified terms on April 28, 2005. The modified terms changed his five years of probation to two years of community control, followed by three years of probation.

The defendant also alleges he was arrested in Miami-Dade County on November 29, 2006, on charges arising in Miami-Dade County. At the same time, he alleges, he was arrested on a warrant issued in July 2005 for violation of his community control in the Broward case. Ultimately, the Miami-Dade charges were resolved by July 25, 2007. Shortly thereafter, he was transported to Broward County, where the court revoked his community control and sentenced him to prison.

In the instant motion before the Bro-ward court, the defendant sought credit for the time he allegedly served in the Miami-Dade jail from April 1-15, 2005. The defendant also sought credit for the period from his arrest on November 29, 2006, until July 25, 2007, when his Miami-Dade charges resolved. The court summarily denied the motion. The defendant now appeals.

With respect to April 1-15, 2005, the defendant did not allege where in the Broward case record the information can be located demonstrating that he served time in the Miami-Dade jail during that period. See State v. Mancino, 714 So.2d 429, 433 (Fla.1998) (error in trial court’s award of jail time credit can be raised at any time in a rule 3.800(a) motion “when it is affirmatively alleged that the court records demonstrate on their face an entitlement to relief’). Therefore, on that claim, we affirm. Our affirmance, however, is without prejudice to the defendant filing either: (1) a proper rule 3.800(a) motion alleging where in the Broward case record the information can be located which would demonstrate that he served time in the Miami-Dade jail during that period; or (2) a properly sworn rule 3.850 motion. Woody v. State, 993 So.2d 1158, 1159 (Fla. 4th DCA 2008). Because the time for filing a rule 3.850 motion expired while the instant appeal was pending, any such rule 3.850 motion must be filed within thirty days of the mandate to be issued in this case. Id.

With respect to the period from November 29, 2006, to July 25, 2007, the defendant is not entitled to credit even if he can establish that he was arrested in the Miami-Dade jail on the Broward VOCC warrant on November 29, 2006. That is because, according to his own allegations, he also was in custody for his Miami-Dade charges during that period, and his Broward sentence was not made to run concurrent with any sentence which could have been imposed under his Miami-Dade charges. See Ransone v. State, 20 *726So.3d 445 (Fla. 4th DCA 2009) (defendant not entitled to credit from date of arrest in Miami-Dade on unrelated Broward VOCC warrant for jail time served in Miami-Dade on Miami-Dade case, where Bro-ward sentence was not made concurrent with Miami-Dade sentence). Therefore, on that claim, we affirm. As we did in Ransone, we certify conflict with Tharpe v. State, 744 So.2d 1256 (Fla. 3d DCA 1999).

Affirmed in part; affirmed without prejudice in part.

GROSS, C.J., TAYLOR and GERBER, JJ., concur.


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Citator

Cited By

  • Mendez v. State, 42 So. 3d 848 (Fla. 5th DCA 2010)
    …ed to the additional jail credit he seeks. In this case, that means he must allege where in the record information can be found that demonstrates he served time in the Lake County Jail solely because of an Orange County detainer. See Ponce v. State, 24 So. 3d 724 (Fla. 4th DCA 2009); Hamage v. State, 946 So. 2d 598 (Fla. 4th DCA 2006). Alternatively, if the Appellant believes an evi-dentiary hearing is necessary to resolve his claim, he may file a properly sworn rule 3.850 motion. Because the time for filing…
  • Mount v. State, 97 So. 3d 951 (Fla. 5th DCA 2012)
    …e Florida Supreme Court approved the Fourth District’s decision, concluding that “the Fourth District properly applied our precedent in Daniels and the statutory requirements of section 921.16(1).” Ransone, 48 So. 3d at 694; see also Ponce v. State, 24 So. 3d 724, 725-26 (Fla. 4th DCA 2009) (“With respect to the period from November 29, 2006, to July 25, 2007, the defendant is not entitled to credit even if he can establish that he was arrested in the Miami-Dade jail on the Broward VOCC warrant on November 2…

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