Carson v. State, 85-1844
| Decision Date | 13 June 1986 |
| Docket Number | No. 85-1844,85-1844 |
| Citation | 11 Fla. L. Weekly 1350,489 So.2d 1236 |
| Parties | 11 Fla. L. Weekly 1350 Scott CARSON, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, and D.P. Chanco, Asst. Public Defender, Bartow, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Ann Garrison Paschall, Asst. Atty. Gen., Tampa, for appellee.
Appellant, Scott Carson, appeals from an amended judgment and sentence. We affirm in part and reverse in part.
Appellant was charged on April 30, 1981, with burglary, a violation of section 810.02(3), Florida Statutes (1981). He entered a plea of guilty and on January 28, 1982, was placed on probation for three years. An affidavit charging him with violating two conditions of probation was subsequently filed on August 27, 1984. Appellant admitted the violations, his probation was revoked, and he was adjudicated guilty of the underlying offense of burglary. Appellant was sentenced on January 14, 1985, to thirty months imprisonment with credit for time served. This sentence was to run concurrently with appellant's sentence for a pending violation of parole charge. It appears that appellant served two months of the sentence and was discharged.
On May 16, 1985, the state filed a motion to correct appellant's sentence to reflect the correct amount of credit for time served. At a hearing held on the motion it was revealed that appellant had been erroneously discharged because the sheriff's office had erred in calculating credit for time served. Appellant had received 546 days of credit when he should have received 173 days. The court granted the state's motion and issued an amended sentence, nunc pro tunc, January 14, 1985. This appeal timely followed.
Appellant contends that the trial court erroneously increased his sentence after he had already been discharged. He argues that under Florida Rule of Criminal Procedure 3.800, a court may reduce or modify a sentence imposed by it within sixty days after imposition, but may not increase the sentence. Here, the court allegedly not only erred by increasing the sentence, but the motion to correct sentence was untimely because it was not filed within the sixty-day period.
We find, however, that rule 3.800 has no application to this case, because the trial court was neither correcting an illegal sentence nor reducing a legal sentence, but was attempting to execute the original sentence it had ordered. Perry v. State, 357 So.2d 425 (Fla. 3d DCA 1978). A court may correct clerical mistakes in its own judgments and records, nunc pro tunc, even after the term of court has expired, and such corrections generally relate back and take effect as of the date of judgment. Boggs v. Wainwright, 223 So.2d 316 (Fla.1969); Per...
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