ANTHONY CAPPELLETTI, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Cappelletti appealed the denial of his motion for jail credit, which was filed without the required oath under Florida Rule of Criminal Procedure 3.801(c). The court reversed and remanded, requiring the trial court to strike the motion for failure to include the oath and allow him to file an amended, compliant motion. The court also clarified that Cappelletti appeared entitled to 203 additional days of jail credit against his consecutive burglary sentence.
The court held that Cappelletti's motion must be struck for failure to include the required oath, but he must be given an opportunity to file an amended motion in compliance with rule 3.801. The court also held that upon filing a facially sufficient motion, Cappelletti appears entitled to an additional 203 days of jail credit to be applied against his consecutive burglary sentence.
[1] A motion filed under Florida Rule of Criminal Procedure 3.801 must be sworn to under oath.
[2] A defendant is entitled to an opportunity to amend a motion filed under Florida Rule of Criminal Procedure 3.801 if the motion is facially insufficient only in its lack o…
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Establishes the calculation of remaining jail credit owed to the defendant and the principle that jail credit applies only to the first of consecutive sentences
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Join FLexlaw to unlock all legal intelligenceCappelletti was convicted and sentenced to ten years as a habitual felony offender, consecutive to a one-year county jail sentence on misdemeanor coun…
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Anthony M. Cappelletti appeals the order denying his motion for jail credit filed under Florida Rule of Criminal Procedure 3.801.1 Cappelletti’s motion was filed without the oath required by rule 3.801(c). Accordingly, we reverse and remand with instructions for the postconviction court to strike Cappelletti’s motion for failure to include the requisite oath and afford him an opportunity to file an amended motion in compliance with the requirements of rule 3.801. See Jones v. State, 143 So.3d 1102, 1103 (Fla. 5th DCA 2014) (holding that because Jones’ motion was compliant in all respects save an oath, he was entitled to an opportunity to amend pursuant to rule 3.801(e), which incorporates the provision in rule 3.850(f)(2) that if a motion is facially insufficient, the trial *1054court must give the defendant 60 days to amend).
Should Cappelletti file a timely and facially sufficient motion, we draw the postconviction court’s attention to section 921.161(2), Florida Statutes (2010), which provides that defendants shall be awarded credit for all time spent in county jail before sentencing. The trial court awarded Cappelletti 568 days of jail credit on his misdemeanor counts only. However, because the court imposed the habitual felony offender sentence of ten years consecu-tivé to his longest' misdemeanor sentence of one year in county jail and jail credit is only awarded against the first of consecutive sentences, see Steadman v. State, 23 So.3d 811, 813 (Fla. 2d DCA 2009), it appears that Cappelletti has, a balance remaining of 203 days of jail credit. The only way for Cappelletti to be awarded all of the jail credit to which he is entitled is to apply the balance remaining against his consecutive burglary sentence.
Reversed and remanded for further proceedings,
WALLACE, MORRIS, and LUCAS, JJ., concur.
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Citator
Cited By
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Downs v. State (Fla. 2d DCA 2020)
Authorities Cited
- Hale v. State, 630 So. 2d 521 (Fla. 1993)
- Steadman v. State, 23 So. 3d 811 (Fla. 2d DCA 2009)
- Harris v. State, 845 So. 2d 250 (Fla. 2d DCA 2003)
- Ponce Cato v. State, 845 So. 2d 250 (Fla. 2d DCA 2003)
- Jones v. State, 143 So. 3d 1102 (Fla. 5th DCA 2014)