MICHAEL MCCALL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Michael McCall appealed the 2009 revocation of his probation for burglary and his thirty-year habitual felony offender sentence. The court affirmed the sentence but found an arguable merit issue regarding McCall's entitlement to credit for time served in prison before the probationary portion began, noting that while the trial court verbally granted credit for time served, it failed to order such credit in the written sentence.
Although the trial court's oral pronouncement granted credit for time served, the written sentence failed to order credit for McCall's prior prison time, constituting a sentencing error. However, because McCall did not object or file a motion to correct under Rule 3.800(b), he failed to preserve the issue for appellate review. The affirmance is without prejudice to any right McCall may have to file a motion to correct his sentence under Rule 3.800(a).
[1] A trial court must order that a defendant receive credit for time served in prison on the incarcerative portion of a split sentence, even if the calculation is delegated…
[2] A defendant waives the right to appellate review of a sentencing error by failing to object to the error or file a motion to correct the sentence in the trial court.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Although a trial court may delegate to the Department of Corrections the task of calculating the amount of prison credit that is due, the trial court must order that such credit be provided.”
Establishes that while calculation may be delegated, the trial court has a mandatory duty to order the credit in the sentencing judgment.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceMcCall was sentenced for a probation violation in 2009. The trial court orally pronounced that McCall should receive "credit for all time served inclu…
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Michael McCall appeals the 2009 revocation of his probation for burglary of a dwelling and his resulting sentence of thirty years in prison as a habitual felony offender. Mr. McCall’s appellate counsel initially filed an Anders1 brief, asserting that no issue of arguable merit could be found to support significant reversible error in this case. However, our review of the record and of the applicable law reflected an issue of arguable merit in the failure of the trial court to order that Mr. McCall receive credit for the time that he served in prison on the incarcerative portion of his split sentence. See § 921.0017, Fla. Stat. (1995); Downing v. State, 779 So .2d 562, 563 (Fla. 2d DCA 2001); Saavedra v. State, 59 So.3d 191, 192 (Fla. 3d DCA 2011); Smith v. State, 921 So.2d 794, 796 (Fla. 5th DCA 2006). Accordingly, we directed the parties to file supplemental briefs addressing the issue of Mr. McCall’s right to credit for the time that he served in prison before the probationary portion of his sentence began. After reviewing the parties’ supplemental briefs, we affirm.
In its oral pronouncement of sentence, the trial court directed that Mr. McCall was to receive “[cjredit for all time served including today’s date.” The written sentence grants credit for time served of 1108 days, which is about three years. But at the time Mr. McCall was sentenced *1016for the violation of his probation in 2009, he had already served over eight years in prison before being released to probation. Mr. McCall did not receive credit for this prison time. Although a trial court may delegate to the Department of Corrections the task of calculating the amount of prison credit that is due, the trial court must order that such credit be provided. Smith, 921 So.2d at 796. Here, the trial court failed to order that such credit be provided in the written sentence.
Nevertheless, Mr. McCall did not object or file a motion to correct this sentencing error in accordance with Florida Rule of Criminal Procedure 3.800(b). Thus he failed to preserve the issue for appellate review. Ingraham v. State, 82 So.3d 1101 (Fla. 2d DCA 2012); Woodard v. State, 6 So.3d 726, 727 (Fla. 2d DCA 2009). Accordingly, our affirmance is without prejudice to any right Mr. McCall may have to file a motion to correct his sentence under rule 3.800(a).
We have considered all of the other issues raised in the initial Anders brief and in Mr. McCall’s pro se brief, and we find them to be without merit.
Affirmed.
KELLY and KHOUZAM, JJ., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Jacoby v. State, 215 So. 3d 168 (Fla. 2d DCA 2017)…n revocation of the probationary term of a probationary split sentence, the trial court may impose any sentence the court “might have originally imposed with credit for time served.” Young, 697 So. 2d at 77; see also § 948.06(2)(b); McCall v. State, 88 So. 3d 1015, 1015-16 (Fla. 2d DCA 2012). The State recognizes that if Jacoby had been sentenced upon revocation of his probationary split sentence to a new prison sentence that he would have been entitled to credit for prison time previously served. See, e.g.,…
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Black v. State, 257 So. 3d 559 (Fla. 2d DCA 2018)…for appeal by way of a motion filed pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). "[A] trial court may delegate to the Department of Corrections the task of calculating the amount of prison credit that is due . . . ." McCall v. State, 88 So. 3d 1015, 1016 (Fla. 2d DCA 2012). However, the court must specify the amount of jail credit to which a defendant is entitled. § 921.161(1), Fla. Stat. (2016) (mandating that an award of jail credit must be "for a specified period of time and shall be prov…
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Roberto v. State, 150 So. 3d 804 (Fla. 2d DCA 2014)…sentences for fleeing or eluding a law enforcement officer and vehicular homicide without prejudice to any right he may have to file a motion pursuant to Florida Rule of Criminal Procedure 3.800(a) with respect to prison credit. See McCall v. State, 88 So. 3d 1015, 1016 (Fla. 2d DCA 2012). KELLY and VILLANTI, JJ„ Concur.…
Authorities Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- Saavedra v. State, 59 So. 3d 191 (Fla. 3d DCA 2011)
- Downing v. State, 779 So. 2d 562 (Fla. 2d DCA 2001)
- Quarra Woodard v. State, 6 So. 3d 726 (Fla. 2d DCA 2009)
- Smith v. State, 921 So. 2d 794 (Fla. 5th DCA 2006)
- Ingraham v. State, 82 So. 3d 1101 (Fla. 2d DCA 2012)
- Martin v. State, 82 So. 3d 1101 (Fla. 1st DCA 2012)