DANA ALAN PEVEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellate court remanded for determination of whether sentencing transcript exists in record to resolve dispute over whether defendant received proper credit for time served on consecutive sentences.
When a sentencing transcript is not in the appellate record, the postconviction court must determine its availability before ruling on a Rule 3.800(a) motion for credit for time served.
[1] When a sentencing transcript is absent from the appellate record in a Rule 3.800(a) credit-for-time-served motion, the postconviction court must first determine whether t…
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Join FLexlaw to unlock all legal intelligenceDana Alan Pevey was convicted on multiple counts and received consecutive sentences. He moved for proper credit for time served, claiming the sentenci…
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Dana Alan Pevey appeals the order granting in part and denying in part his motion pursuant to Florida Rule of Criminal Procedure 3.800(a) seeking proper credit for time served. The postconviction court determined that Pevey was entitled to five more days credit than he had received, and it awarded him those five additional days on count one only. Consequently, the court denied Pevey’s assertion that the sentencing court had orally pronounced that he would receive credit against both counts of his consecutive sentences. The record before us does not contain the sentencing transcript, and it was not attached to either Pevey’s motion or the court’s order. Accordingly, we remand for the postconviction court to determine whether the transcript is in the record. If it is, the court shall either grant Pevey’s motion or deny it and attach the portions of the record refuting Pevey’s claim. If the transcript is not in the record, the court shall deny Pevey’s motion without prejudice to him filing an amended motion with the relevant portion of the transcript attached. See Beard v. State, 27 So.3d 186, 187-88 (Fla. 5th DCA 2010) (citing Williams v. State, 957 So.2d 600, 604 (Fla.2007)).
Remanded with directions.
KELLY and LaROSE, JJ., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Williams v. State, 957 So. 2d 600 (Fla. 2007)
- Beard v. State, 27 So. 3d 186 (Fla. 5th DCA 2010)