WILLIAM MCKERNAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court affirmed the denial of a motion to correct an allegedly illegal sentence, holding that probationary sentences are automatically tolled when a defendant serves a concurrent prison sentence, and that the claim was barred by collateral estoppel.
A probationary sentence automatically tolls when a criminal defendant begins serving a prison sentence from another case, and a motion raising this issue is barred by collateral estoppel if previously raised.
[1] A probationary sentence automatically tolls when a defendant commences serving a prison sentence imposed in a separate case.
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Join FLexlaw to unlock all legal intelligenceAppellant McKernan received probationary sentences in three separate cases that he contended expired while he served a prison sentence imposed in anot…
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We affirm the trial court’s denial of appellant’s rule 3.800(a) motion to correct illegal sentence, which contends his probationary sentences imposed in three separate cases expired while appellant served a prison sentence imposed in another case after the probationary sentences commenced. The motion does not establish an “illegal” sentence that can be corrected at any time. Carter v. State, 786 So.2d 1173, 1178 (Fla.2001). Moreover, a probationary sentence once commenced automatically is tolled when a criminal defendant begins serving a prison sentence from another case. Bowman v. State, 86 So.3d 534, 535 (Fla. 2d DCA 2012) (citations omitted). In addition, since appellant raised the same claim in McKernan v. State, 8 So.3d 367 (Fla. 4th DCA 2009), the trial court’s order of summary denial must be affirmed based on collateral estoppel. Kittles v. State, 83 So.3d 958, 960 (Fla. 4th DCA), mandamus dismissed, 90 So.3d 271 (Fla.2012).
Accordingly, the Clerk of this Court is directed to forward a certified copy of this opinion to the appropriate institution for consideration of disciplinary procedures, including forfeiture of gain time. § 944.279(1), Fla. Stat. (2012). Further, appellant is cautioned that future frivolous filings will result in additional sanctions such as a bar on pro se filings in this court. State v. Spencer, 751 So.2d 47 (Fla.1999); King v. State, 127 So.3d 684 (Fla. 4th DCA 2013).
Affirmed. Appellant referred for consideration of disciplinary procedures.
MAY, FORST and KLINGENSMITH, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Logan v. State, 149 So. 3d 72 (Fla. 4th DCA 2014)…already has raised this claim in a previous rule 3.800(a) motion, the denial of which we affirmed on [*73] appeal. See Logan v. State, 979 So. 2d 237 (Fla. 4th DCA 2008). As a result, collateral estoppel bars this claim. See, e.g., McKeman v. State, 139 So. 3d 948 (Fla. 4th DCA 2014). Because we warned appellant in Logan v. State, 21 So. 3d 917, 918 (Fla. 4th DCA 2009), that continued filing of frivolous post-conviction motions would result in sanctions, we direct the clerk-of this court to forward a certif…
Authorities Cited
- State v. Spencer, 751 So. 2d 47 (Fla. 1999)
- Carter v. State, 786 So. 2d 1173 (Fla. 2001)
- Kittles v. State, 83 So. 3d 958 (Fla. 4th DCA 2012)
- King v. State, 127 So. 3d 684 (Fla. 4th DCA 2013)
- Bowman v. State, 86 So. 3d 534 (Fla. 2d DCA 2012)