MELVIN MURRAY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Melvin Murray appealed his convictions for seven third-degree felonies across three cases, challenging the denial of credit for time served in two cases and claiming his pleas were involuntary due to counsel's misadvice about the minimum permissible sentence. The court affirmed on the credit issue but reversed and remanded on the plea withdrawal issue.
The court affirmed the denial of credit for time served in the second and third cases because those sentences ran consecutively to the first case, entitling Murray to credit only on the first case. The court reversed and remanded the plea withdrawal issue because Murray's pleas were not voluntary due to erroneous information provided by both counsel and the prosecutor regarding his minimum permissible sentence.
[1] A defendant must preserve the issue of credit for time served by objecting at sentencing or filing a timely motion to correct sentencing error.
[2] A defendant is generally entitled to credit for time served only on the sentence to which the time served is applied, not on subsequent consecutive sentences.
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Join FLexlaw to unlock all legal intelligence“Because his sentences in the second and third cases are consecutive to his sentence in the first case, the appellant was only entitled to credit for time served on his sentence in the first case.”
Establishes the legal rule that credit for time served applies only to the first sentence when subsequent sentences run consecutively.
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Join FLexlaw to unlock all legal intelligenceMurray was sentenced in three related cases to concurrent terms of five years in prison. In the first case, he received 232 days credit for time serve…
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The appellant, Melvin Murray, appeals from his convictions and sentences for seven third-degree felonies in three cases. He raises two issues on appeal.
First, the appellant argues that the trial court erred by not awarding him credit for time served in the second and third cases. This issue, however, was not preserved for appellate review. The appellant neither objected at the sentencing hearing nor timely filed a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b). See Howard v. State, 705 So.2d 947, 948 (Fla. 1st DCA 1998).
Even if preserved, the appellant’s argument is without merit. In the first case, the appellant was sentenced to two concurrent terms of five years in prison. He was awarded 232 days credit for time served. In the second case, he was sentenced to two concurrent terms of five years in prison, to run consecutive to his sentence in the first case. In the third case, he was sentenced to three concurrent terms of five years in prison, to run consecutive to his sentence in the first case but concurrent to his sentence in the second case. He was not awarded credit for time served in the second or third case. Because his sentences in the second and third cases are consecutive to his sentence in the first case, the appellant was only entitled to credit for time served on his sentence in the first case. See Steadman v. State, 23 So.3d 811 (Fla. 2d DCA 2009). Accordingly, we affirm on the first issue.
Second, the appellant argues that the trial court should have allowed him to withdraw his pleas because of misadvice of counsel involving the lowest permissible sentence. At the plea hearing, the appellant’s counsel stated that the appellant’s criminal punishment code scoresheet provided for a minimum sentence of any non-state prison sanction, meaning that he could be sentenced to less than 365 days in jail or another non-state prison sanction. See § 921.0024(2), Fla. Stat. (2008). When the trial court asked if the State had a scoresheet, the prosecutor also stated that the appellant’s minimum permissible sentence would be any non-state prison sanction. The appellant entered open pleas in all three cases.
However, when the appellant’s score was calculated for sentencing, the appellant received 50 points, resulting in a minimum non-departure sentence of 16.5 months in prison. The maximum sentence was 35 years in prison. The appellant was *794sentenced to a total term of 10 years in prison.
After sentencing, the appellant moved to withdraw his pleas, alleging that he would not have entered the pleas had he known he would be subject to a mandatory state prison sentence. It is apparent from the record that the appellant was misled as to the lowest permissible sentence and his pleas were entered based on erroneous information provided by his counsel and the prosecutor. Under these circumstances, the appellant’s pleas were not voluntary and he should have been permitted to withdraw them. See Waldrop v. State, 882 So.2d 1047 (Fla. 1st DCA 2004). Accordingly, we reverse and remand on the second issue for further proceedings consistent with this opinion.
AFFIRMED in part, REVERSED in part, and REMANDED.
WEBSTER and LEWIS, JJ., concur.
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Hypes v. State, 163 So. 3d 745 (Fla. 1st DCA 2015)…uilty or no contest to be withdrawn.” If the defendant establishes good cause, the court must allow the defendant to withdraw the plea. Tanzi v. State, 964 So. 2d 106 (Fla.2007); Crane v. State, 69 So. 3d 357 (Fla. 2d DCA 2011); and Murray v. State, 36 So. 3d 792 (Fla. 1st DCA 2010). Once good cause is éstab-lished, the court no longer has discretion to consider the request to withdraw. A showing of good cause “entitles the defendant to withdraw a plea as a matter of right.” Tanzi, 964 So. 2d at 113 (quotati…
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Kaye v. State, 64 So. 3d 754 (Fla. 5th DCA 2011)…served in Hamilton County. Whether Kaye is entitled to that credit is not clear from the face of the record, and his failure to object to not receiving the proper jail credit renders this issue unpreserved for appellate review. See Murray v. State, 36 So. 3d 792, 793 (Fla. 1st DCA 2010). AFFIRMED. ORFINGER, C.J., COHEN and JACOBUS, JJ., concur. . Kaye could have, but did not file a motion during the pendency of the appeal pursuant to Florida Rule of Criminal Procedure 3.800(b)(2).…
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Dawes v. State, 138 So. 3d 567 (Fla. 2d DCA 2014)…2d DCA 2007); Bizzell v. State, 912 So. 2d 386 (Fla. 2d DCA 2005); Shortridge v. State, 884 So. 2d 321 (Fla. 2d DCA 2004); Williams v. State, 734 So. 2d 1113 (Fla. 2d DCA 1999); Greenlee v. State, 591 So. 2d 310 (Fla. 2d DCA 1991); Murray v. State, 36 So. 3d 792 (Fla. 1st DCA 2010); Mills v. State, 840 So. 2d 464 (Fla. 4th DCA 2003); Rodriguez v. State, 645 So. 2d 98 (Fla. 3d DCA 1994). KHOUZAM, MORRIS, and SLEET, JJ., Concur.…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Steadman v. State, 23 So. 3d 811 (Fla. 2d DCA 2009)
- Moss v. Singletary, 705 So. 2d 947 (Fla. 1st DCA 1998)
- Waldrop v. State, 882 So. 2d 1047 (Fla. 1st DCA 2004)