GERALDINE LINGO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the statute mandating a minimum sentence for aggravated battery with a firearm does not preclude credit for time served awaiting sentencing.
Appellant was convicted of aggravated battery and incarcerated for 81 days while awaiting sentencing. The trial court refused to credit this time serv…
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OTT, Judge:
Appellant was convicted of aggravated battery in violation of Section 784.045(1)(b), Florida Statutes. The appellant was incarcerated for 81 days while awaiting sentencing. The court below held that Section 775.087(2), Florida Statutes, which provides in relevant part that:
Any person who is convicted of . aggravated battery . . . and who had in his possession a “firearm” . shall be sentenced to a minimum term of imprisonment of three calendar years. . . .
precluded crediting the time served. We affirm the judgment but reverse on this ground and remand for the resentencing of appellant reflecting a credit for time served.
Section 921.161(1), Florida Statutes provides as follows:
(1) A sentence of imprisonment shall not begin to run before the date is imposed, but the court imposing a sentence shall allow a defendant credit for all of the time he spent in the county jail before sentence. The credit must be for a specified time and shall be provided for in the sentence.
Hollingshead v. State, 292 So. 2d 617 (Fla.1st DCA 1974) held that “[ajllowance of credit for time served in jail prior to sentencing is now mandatory.” See Smith v. State, 310 So. 2d 770 (Fla.2d DCA 1975); Grine v. State, 301 So. 2d 122 (Fla.2d DCA 1974). Cf., Deaver v. State, 326 So. 2d 222 (Fla.2d DCA 1976); Williams v. State, 310 So. 2d 53 (Fla.2d DCA 1975).
When read together, Section 921.161 and Section 775.087, Florida Statutes support the conclusion herein.
We have considered the other assignments of error but find they fail to have any merit.
BOARDMAN, C. J., and SCHEB, J., concur.
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Eskell H. Kitchen v. Kitchen, 404 So. 2d 203 (Fla. 2d DCA 1981)…dge of the truth of those allegations.” Id. at 661—662. The distinction between denial and avoidance and the interpretation of the rules made by Mr. Trawick and the Moore Meats court have been followed in several cases, e. g., Equibank v. Penland, 344 So. 2d 629 (Fla. 1st DCA 1977); Miller v. Smith, 341 So. 2d 1021 (Fla. 4th DCA 1977); Pickard v. Miggins, 311 So. 2d 686 (Fla. 3d DCA 1975), and we are in accord with all of the foregoing authorities. Under the holding in Moore, it is only when “new matter” i…
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Bacon v. State, 346 So. 2d 629 (Fla. 2d DCA 1977)…point; however, we note that the mandatory minimum sentence provision of Section 775.087, Florida Statutes (1975) for felonies involving a firearm does not preclude allowance of credit for time served prior to imposition of sentence. Lingo v. State, 344 So. 2d 629 (Fla.2d DCA 1977). Accordingly, the judgments and sentences are vacated and the cause remanded [*632] for a new trial on Counts I, II, and on the lesser offense for which the appellant was found guilty under Count IV. BOARDMAN, C. J., and GRIMES,…
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HERTZ Commercial Leasing Corp. v. Seebeck, 399 So. 2d 1110 (Fla. 5th DCA 1981)…ired to merely deny an affirmative defense. An automatic denial of every allegation of an affirmative defense is provided by Florida Rule of Civil Procedure 1.110(e). Moore Meats, Inc. v. Strawn, 313 So. 2d 660 (Fla.1975); Equibank, N.A. v. Penland, 344 So. 2d 629 (Fla.1st DCA 1977); Miller v. Smith, 341 So. 2d 1021 (Fla. 4th DCA 1977). Under Rule 1.100(a) a reply is required only if the pleader wishes to avoid the affirmative defense. A reply is activated only by an affirmative defense that can be avoided.…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Smith v. State, 310 So. 2d 770 (Fla. 2d DCA 1975)
- Odom v. State, 310 So. 2d 770 (Fla. 2d DCA 1975)
- Hollingshead v. State, 292 So. 2d 617 (Fla. 1st DCA 1974)
- Grine v. State, 301 So. 2d 122 (Fla. 2d DCA 1974)
- Deaver v. State, 326 So. 2d 222 (Fla. 2d DCA 1976)
- Williams v. State, 310 So. 2d 53 (Fla. 2d DCA 1975)