COREY BARBOUR, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellate court affirmed denial of post-conviction relief on most grounds but remanded for the trial court to attach record evidence demonstrating that the defendant received jail credit on a separate consecutive sentence.
A defendant is not entitled to receive duplicate jail credit for time served when sentences run consecutively, but the trial court must attach record evidence to support its conclusion that credit was already awarded.
[1] A defendant is not entitled to receive jail credit for time served on each sentence when consecutive sentences are imposed, but the trial court must attach record evidenc…
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Join FLexlaw to unlock all legal intelligenceCorey Barbour sought post-conviction relief arguing his sentence was illegal because he did not receive proper jail credit for time served in county j…
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Corey Barbour appeals the trial court’s order denying his motions seeking post-conviction relief. See Fla. R.Crim. P. 3.850. Although Barbour raises eleven claims in his motions, only one merits discussion. Specifically, in ground ten, Barbour alleges that his sentence is illegal because he did not receive proper credit for the time he served in the county jail. The trial court denied this claim, stating that Barbour received credit for the time he served in county jail in a separate case and, since Barbour’s sentence in the instant case was ordered to run consecutively to the sentence in the separate case, he was not entitled to receive any additional jail credit.
The trial court is correct that a defendant is not entitled to receive credit for time served on each sentence when the court imposes consecutive sentences. See Gillespie v. State, 910 So.2d 322 (Fla. 5th DCA 2005). Howrever, the trial court did not attach any portion of the record to support its conclusion that Barbour had received jail credit on either of his sentences. Therefore, we remand this case for the attachment of portions of the record conclusively refuting Barbour’s claim.
AFFIRMED in part; REVERSED in part; and REMANDED.
LAWSON and EVANDER, JJ., concur.
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Citator
Cited By (13 total)
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Amos Augustus Williams v. State, 123 So. 3d 23 (Fla. 2013)…t is convicted and the instruction is pertinent or material to what the jury must consider to convict and concerns a matter in dispute, Reed, 837 So. 2d at 369, the error is fundamental. Montgomery, 39 So. 3d at 259. . See, e.g., Gonzalez v. State, 40 So. 3d 60, 62 (Fla. 2d DCA 2010); Coiscou v. State, 43 So. 3d 123, 124 (Fla. 3d DCA 2010). . We also decline the State’s invitation in this case to revisit our Montgomery decision. We have reconfirmed the holding in Montgomery in subsequent cases, such as Bo…
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Banek v. State, 75 So. 3d 762 (Fla. 2d DCA 2011)…bsequent to the resolution of the direct appeal in this case, this court has held that the standard attempted manslaughter by act jury instruction constitutes fundamental error. See Houston v. State, — So. 3d - (Fla. 2d DCA 2011); Gonzalez v. State, 40 So. 3d 60 (Fla. 2d DCA 2010). Both Houston and Gonzalez were based on the Florida Supreme Court’s opinion in State v. Montgomery, 39 So. 3d 252 (Fla.2010). In Montgomery, the Florida Supreme Court approved the First District’s decision in Montgomery v. State…
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Houston v. State, 87 So. 3d 1 (Fla. 2d DCA 2011)…ttempted manslaughter by act ... adds the additional element that the defendant ‘committed an act intended to cause the death’ of the victim when attempted manslaughter by act requires only an intentional unlawful act.”); see also Gonzalez v. State, 40 So. 3d 60, 62 (Fla. 2d DCA 2010) (“At oral argument the State conceded that, based on Montgomery, Gonzalez’s conviction for attempted second-degree murder must be reversed due to the ... standard jury instruction for attempted manslaughter by intentional act…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gillespie v. State, 910 So. 2d 322 (Fla. 5th DCA 2005)