RONALD CHARLES USSERY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Affirmed conviction for drug possession offenses but reversed sentencing to require credit for jail time served under Florida Statutes § 921.161 and struck surplusage language regarding hard labor.
A sentence provision for hard labor is technical surplusage that may be stricken, but the trial court must redo sentencing to provide credit for jail time served under § 921.161 without double-crediting consecutive sentences.
[1] A sentence provision for hard labor is technical surplusage that may be stricken when no longer provided by statute, but does not invalidate the sentence itself.
[2] Credit for jail time served must be applied under Florida Statutes § 921.161 to only the first count in consecutive sentences to avoid double credit.
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Join FLexlaw to unlock all legal intelligenceUssery was convicted by jury of possession of devices for unlawful use of a controlled substance and unlawful possession of a controlled substance, an…
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MELVIN, Judge.
Appellant-defendant appeals from a judgment of guilty for the crimes of possession of devices for unlawful use of a controlled substance and unlawful possession of a controlled substance. The judgment is based on a jury verdict, no error is claimed, and the same is affirmed. The trial court imposed two consecutive sentences to imprisonment at “hard labor” with no credit for jail time served.
While there is no longer any provision for a sentence “at hard labor”, such omission is not a proper basis for any assumption that those in charge of the penitentiary system cannot include hard labor as a proper part of a correctional program. McDonald v. State, 321 So. 2d 453 (Fla.4th DCA 1975). Such provision in a sentence is technical surplusage and may be, and is hereby, stricken as such. However, we must reverse the sentence imposed as to Count I with directions that appellant be sentenced in compliance with Section 921.161, Florida Statutes, relating to credit for jail time served on these charges. Thus, when the first sentence has been amended, appellant will have received all the time credit benefit to which he is entitled. He is not entitled to double credit which would be the result if such time credit was allowed as to the consecutive sentence imposed as to Count II. It will not be necessary for appellant to be present before the trial court for the entry of the corrective sentence. Affirmed in part and reversed in part.
MILLS, Acting C. J., and SMITH, J., concur.
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Citator
Cited By (24 total)
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Counts v. State, 376 So. 2d 59 (Fla. 2d DCA 1979)…ness on any appeal, and he does, in fact, appeal, he might find himself precluded from raising the question of voluntariness in a subsequent collateral attack on the judgment pursuant to Florida Rule of Criminal Procedure 3.850. See Ashley v. State, 350 So. 2d 839 (Fla. 1st DCA 1977). We do not believe this would be a desirable result in that the Rule 3.850 motion serves as a useful vehicle for obtaining review of the voluntariness question because of the evi-dentiary hearing which the trial court can accord…
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Massey v. State, 351 So. 2d 376 (Fla. 1st DCA 1977)…a maximum sentence of ten years for such offense. The provision “at hard labor”, appearing in said sentences, is merely surplusage and the same is hereby stricken as such. McDonald v. State, 321 So. 2d 453 (Fla. 4th DCA 1975), and Ussery v. State, 350 So. 2d 839 (Fla. 1st DCA 1977). As amended, the sentences referred to are AFFIRMED. SMITH, Acting C. J., and ERVIN, J., concur.…
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Oceanus McCALL v. State, 374 So. 2d 644 (Fla. 1st DCA 1979)…PER CURIAM. McCall appeals the summary denial of his 3.850 motion to vacate a judgment and sentence of armed robbery. However, each ground raised could have been or should have been raised on direct appeal. Ashley v. State, 350 So. 2d 839 (Fla. 1st DCA 1977). Further, several of the grounds presented in the motion have been previously raised in prior motions to vacate filed by the appellant. The trial court is not required to entertain successive motions for relief which are based on…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- McDONALD v. State, 321 So. 2d 453 (Fla. 4th DCA 1975)