HARVEY WAYNE JOINS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant Harvey Wayne Joins appealed his sentencing for resisting arrest with violence, arguing he was not credited for time served in jail on that charge. The Florida Court of Appeal reversed and remanded for resentencing, holding that under a new statute enacted during the appeal making credit for time served mandatory, the trial court must grant such credit.
Reversed with directions to resentence. Although the trial court had discretion to deny credit for time served at the time of sentencing, the Legislature amended Section 921.161(1) during the pendency of the appeal to make such credit mandatory. Under the principle established in State v. Lee, the appellate court must apply the law in effect at the time of decision, requiring reversal and resentencing with proper credit for time served.
[1] A court must apply the law that is in effect at the time of the appellate decision when determining the correctness of a lower court's order or judgment.
[2] A defendant is entitled to credit for time served in jail prior to sentencing when the law mandates such credit, even if the original sentencing occurred before the law's…
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Join FLexlaw to unlock all legal intelligence“At the time the one-year sentence was imposed following revocation of probation on April 16, 1973, it was discretionary with the trial judge to grant or withhold credit for time served in jail awaiting trial or sentencing.”
Establishes that at the time of original sentencing, credit for time served was discretionary.
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Join FLexlaw to unlock all legal intelligenceJoins was adjudicated guilty of resisting arrest with violence on September 18, 1972, and initially sentenced to six months in jail. That judgment and…
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SPECTOR, Judge.
Appellant seeks reversal of a sentencing order entered April 16, 1973, whereunder he was sentenced to serve one year upon conviction of the crime of resisting arrest with violence. Section 843.02, Florida Statutes, F.S.A., provides a maximum penalty upon such conviction of a one-year sentence.
Prior to the imposition of the one-year sentence on April 16, 1973, appellant, on September 18, 1972, having been adjudicated guilty of said offense was sentenced to six-months imprisonment in Duval County Jail. Shortly thereafter on October 13, 1972, said judgment and sentence were vacated and set aside and appellant was placed on probation for two years. Thereafter, appellant experienced another encounter with the law and pled guilty to charges of felony possession of narcotics. That occurred on April 16, 1973, and such conduct constituted a violation of probation. A two-year sentence was imposed on the narcotics charge and, further, a one-year sentence was imposed to run concurrently therewith on the resisting arrest charge.
Appellant now contends it was error not to be given credit for time served in jail on the resisting arrest charge prior to the vacation of his earlier six-month sentence on said charge. We agree and reverse. At the time the one-year sentence was imposed following revocation of probation on April 16, 1973, it was discretionary with the trial judge to grant or withhold credit for time served in jail awaiting trial or sentencing. Accordingly, the trial court’s refusal to credit appellant with time served in jail prior to the ultimate sentencing on April 16, 1973, was within the discretion of the trial court. However, during the pendency of this appeal, the Legislature amended Section 921.161(1) by providing that allowance of credit for time served in jail prior to sentencing shall be mandatory. See Chapter 73-71, Laws of Florida, 1973, effective May 29, 1973.
In State v. Lee, Case No. R-452, Opinion filed November 27, 1973, not yet reported, this court held that an appellate court will apply the law which obtains at the time the appeal is decided in determining the correctness of the order or judgment before it. In Lee, supra, we reversed an order vacating a death sentence and imposing a life sentence in lieu thereof and held that since a new death penalty statute had been enacted during the pendency of the appeal therein, it was incumbent upon this court to adjudicate the correctness of the trial court’s order vacating the death penalty in light of the law which obtained at the time of the appellate decision. Application of that principle to the case at bar requires a reversal of the order of sentencing reviewed herein with directions that the trial court resentence appellant, giving due credit for the time earlier spent in jail serving the original six-month sentence.
Reversed with directions.
WIGGINTON, Acting C. J. (Retired); and BOYER, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
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Kurlin v. State, 302 So. 2d 147 (Fla. 1st DCA 1974)…y sentence when you do it that way.” The statute specifically provides that “[t]he credit must be for a specified period of time and shall be provided for in the sentence.” We have recently considered this point in Joins v. State, Fla.App.1st 1974, 287 So. 2d 742 and in Manning v. State, Fla.App.lst 1974, 299 So. 2d 632. It is apparent that the court’s statement above quoted did not meet the test of those cases nor the cited statute. Appellant urges that he is entitled to credit for the period of time he wa…
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Heilmann v. State, 310 So. 2d 376 (Fla. 2d DCA 1975)…on direct appeal even though the change became effective after imposition of sentence by the trial court. Hamilton v. State, Fla.App.2d 1975, 306 So. 2d 600; Hollingshead v. State, Fla.App.1st 1974, 292 So. 2d 617; Joins v. State, Fla.App.1st 1974, 287 So. 2d 742; Gallagher v. State, Fla.App.4th 1974, 300 So. 2d 299. A rule 3.850 proceeding, however, is a collateral proceeding, independent of the original prosecution. Courts have long recognized that such collateral remedies are no substitute for a direct a…
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Collins v. Louie L. Wainwright, 311 So. 2d 787 (Fla. 4th DCA 1975)…1, 1973 (272 So. 2d 65). Appellant suggests that we should apply the rule as it exists at the time of the appeal, citing as analogous authority our decision in Gallagher v. State, Fla.App.1974, 300 So. 2d 299. See also Joins v. State, Fla.App. 1974, 287 So. 2d 742. We accept appellant’s suggestion. Accordingly, while the sentencing procedure adopted by the [*789] trial judge was appropriate at the time, its appropriateness has been changed by a change in the law between the conviction and sentence and the app…
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