ANDRE FRISON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Andre Frison appeals his resentence, arguing he was not properly credited for time served. The court reverses and remands for an evidentiary hearing to determine the correct amount of credit for time served, as Frison may have already completed his sentence.
The court reversed and remanded because the record does not establish the proper amount of credit for time served. If Frison was entitled to 40 years credit as claimed, he has completed his sentence, but the trial court failed to conduct an evidentiary hearing to determine this.
[1] A defendant is entitled to an evidentiary hearing to determine the proper amount of credit for time served when the record does not establish the accuracy of the claimed…
[2] A juvenile offender cannot be constitutionally sentenced to life imprisonment without parole for a non-homicide offense.
Previewing 2 of 4 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“If Frison was entitled to receive forty years credit, then he has completed his sentence. However, from the record provided, we cannot determine whether Frison's claim is accurate or not.”
Establishes that the appellate court cannot verify the credit determination from the record and remand is necessary.
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Join FLexlaw to unlock all legal intelligenceFrison was sentenced in 1989 to life in prison for sexual battery with a deadly weapon. In 2011, he filed a motion to correct an illegal sentence unde…
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Andre Frison [“Frison”] appeals the sentence that was imposed upon resen-tencing, arguing that he was not provided the proper credit for time served. We reverse and remand for an evidentiary hearing.
Frison was sentenced in 1989 to life in prison for sexual battery with a deadly weapon pursuant to section 794.011(3), Florida Statutes (1987).1 In 2011, he filed a rule 3.800 motion to correct illegal sentence, contending that pursuant to Graham v. Florida, — U.S. —, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), his life sentence was illegal.2 The State agreed that because Frison was a juvenile at the time he committed the charged offense, Gra *1253 ham applied, making his life sentence without the possibility of parole an illegal sentence. After granting Frison’s motion, the trial court sentenced him to forty years in prison followed by one year community control and life probation. We reversed and remanded for a new resentenc-ing hearing because the trial court had failed to appoint counsel for Frison for the resentencing portion of the hearing. Frison v. State, 76 So.3d 1103 (Fla. 5th DCA 2011).
At the onset of the most recent resen-tencing hearing, Frison’s counsel asserted that after consideration of gain time, Fri-son had already served forty years in prison. Although the State did not dispute such allegation, no stipulation or evidence was presented to the trial court to establish the amount of credit Frison was entitled to receive for time already served in prison. At the conclusion of the hearing, the trial court imposed a sentence of thirty-five years in prison followed by six months community control and four and one-half years probation.3 Frison was awarded thirty-five years credit for time served.
If Frison was entitled to receive forty years credit, then he has completed his sentence. However, from the record provided, we cannot determine whether Frison’s claim is accurate or not. Accordingly, we reverse and remand for an evidentiary hearing to determine the proper amount of credit that Frison is entitled to receive for time served.
REVERSED and REMANDED.
PALMER and LAWSON, JJ., concur.