Ford v. State, 95-3037
| Decision Date | 31 January 1996 |
| Docket Number | No. 95-3037,95-3037 |
| Citation | 667 So.2d 455 |
| Parties | 21 Fla. L. Weekly D301 David J. FORD, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Appeal of order denying rule 3.800(a) motion from the Circuit Court for Broward County; Howard M. Zeidwig, Judge.
David J. Ford, Daytona Beach, pro se appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Aubin, Wade Robinson, Assistant Attorney General, West Palm Beach, for appellee.
Defendant appeals the denial of his 3.800 motion to correct illegal sentence based on a claim that the trial court erred in calculating the credit for time served to be 172 days. Rule 3.800 is a proper vehicle for seeking jail credit. See Fountain v. State, 660 So.2d 376 (Fla. 4th DCA 1995). The state concedes and we agree that because defendant's motion was facially sufficient, the trial court must attach portions of the record sufficient to refute the allegations in order to support its summary denial. See Fountain; Haggerty v. State, 632 So.2d 668 (Fla. 4th DCA 1994); Thomas v. State, 634 So.2d 175 (Fla. 1st DCA 1994).
This appeal is defendant's second appeal from denial of a 3.800 motion. Defendant's initial appeal was dismissed as untimely and thus there was no adjudication on the merits. As to this second motion, the state argued to the trial court that defendant's motion was barred by the doctrine of res judicata and the trial court agreed. However, the state now acknowledges that because an illegal sentence can be corrected at any time, a successive motion was not barred. See Anderson v. State, 584 So.2d 1127 (Fla. 4th DCA 1991).
In this case, defendant would be entitled to credit for time spent in jail awaiting disposition for the escape in addition to the credit for the time he previously spent in jail. He would not, however, be entitled to credit for the time he was not in custody due to escape because when a prisoner escapes, his sentence is tolled. See Adams v. Wainwright 275 So.2d 235 (Fla.1973); Hopping v. State, 650 So.2d 1087 (Fla. 3d DCA 1995).
If upon remand the trial court determines that the files before it do not contain documentation that either refutes or substantiates defendant's claim, the trial court should note the absence of any information in its order. 1 See Thomas. Moreover, in the absence of record documentation that would refute the claim, the denial of the 3.800 motion would be without prejudice to defendant's right to file a timely sworn motion for post-conviction relief on the same grounds, pursuant to Florida Rule of Criminal Procedure 3.850. See Haggerty. At the present time there is no...
To continue reading
Request your trial
-
State v. McBride
...frustrate pro se litigants whose meritorious claims have been previously derailed on procedural grounds. For example, in Ford v. State, 667 So.2d 455 (Fla. 4th DCA 1996), the trial court denied, on res judicata grounds, a successive rule 3.800(a) motion seeking presentence jail credit after......
-
Jefferson v. State, 95-4588
...21 Fla. L. Weekly D1398, --- So.2d ---- (Fla.2d DCA June 12, 1996); Tipper v. State, 674 So.2d 934 (Fla.3d DCA 1996); Ford v. State, 667 So.2d 455 (Fla.4th DCA 1996); Matthews v. State, 664 So.2d 6 (Fla.4th DCA 1995); Serrano v. State, 662 So.2d 1361 (Fla.3d DCA 1995); Saunders v. State, 66......
-
Gibbs v. State, 96-2025
...appear to be no longer cognizable under rule 3.800(a). See Sullivan v. State, 674 So.2d 214 (Fla. 4th DCA 1996); but see Ford v. State, 667 So.2d 455 (Fla. 4th DCA 1996); Nichols v. State, 668 So.2d 278 (Fla. 2d DCA 1996). Because of the apparent confusion over the applicability of rule 3.8......
-
Sullivan v. State, 96-1322
...our court and others since Davis have continued to consider Rule 3.800 motions based upon improper jail credits. See Ford v. State, 667 So.2d 455 (Fla. 4th DCA 1996); Fountain v. State, 660 So.2d 376 (Fla. 4th DCA 1995); Nichols v. State, 668 So.2d 278 (Fla. 2d DCA 1996). We therefore certi......