Martin v. State, No. 87-519

CourtCourt of Appeal of Florida (US)
Writing for the CourtCOWART; COBB; SHARP; COWART; COWART
Citation12 Fla. L. Weekly 2731,525 So.2d 901
Docket NumberNo. 87-519
Decision Date03 December 1987
Parties12 Fla. L. Weekly 2731 Carla D. MARTIN, Appellant, v. STATE of Florida, Appellee.

Page 901

525 So.2d 901
12 Fla. L. Weekly 2731
Carla D. MARTIN, Appellant,
v.
STATE of Florida, Appellee.
No. 87-519.
District Court of Appeal of Florida,
Fifth District.
Dec. 3, 1987.
On Motion for Rehearing En Banc
June 2, 1988.

James B. Gibson, Public Defender, and Daniel J. Schafer, Asst. Public Defender, Daytona Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Kevin Kitpatrick Carson, Asst. Atty. Gen., Daytona Beach, for appellee.

COWART, Judge.

By motion, the appellant claimed before the trial court that while she was given proper credit for time served as to one of her convictions, such credit should have been applied equally as to each of her concurrent sentences. See § 921.161(1), Fla.Stat.; Daniels v. State, 491 So.2d 543 (Fla.1986); Williams v. State, 507 So.2d 745 (Fla. 5th DCA 1987); Thomas v. State, 503 So.2d 450 (Fla. 5th DCA 1987); West v. State, 497 So.2d 1347 (Fla. 5th DCA 1986). The trial court summarily denied relief to the appellant without an evidentiary hearing.

The determination of the proper amount of credit for time served pursuant to section 921.161(1), as explained in Meintzer v. State, 399 So.2d 133 (Fla. 5th DCA 1981), is a question of fact and normally can only be determined after an evidentiary hearing. Accordingly, we reverse and remand for the trial court to either (1) enter another order which shows by attached portions of the court files and record that appellant received proper credit for all time served before sentencing and is entitled to no relief or (2) conduct an evidentiary hearing to determine the questions of fact necessary to determine the jail time credit to which appellant is entitled under the statute. See Fla.R.Crim.P. 3.850.

REVERSED AND REMANDED.

DAUKSCH and ORFINGER, JJ., concur.

ON MOTION FOR REHEARING EN BANC

COBB, Judge.

For purposes of clarification, we have reconsidered this case en banc and, to the extent of any inconsistency with the following opinion, we recede from any language

Page 902

in Deel v. State, 508 So.2d 527 (Fla. 5th DCA 1987), and Meintzer v. State, 399 So.2d 133 (Fla. 5th DCA 1981), which suggests that Florida Rule of Criminal Procedure 3.850 is the exclusive remedy for the trial court's failure to properly credit a defendant with presentence jail time.

The appellant, Carla D. Martin, sought relief before the trial court by filing a "Motion to Correct Sentence," setting out the legal argument that she received only 39 days' credit on her initial charge of grand theft, even though she actually was incarcerated for 101 days altogether between arrest and plea on that charge. The written motion did not identify any particular rule of criminal procedure as its basis. It was summarily denied without evidentiary hearing by the trial court and Martin has filed a plenary appeal from that order.

If the issue of credit time should (not merely could) have been raised via a 3.850 motion, as we said in Deel and Meintzer, then the trial court was absolutely correct in its summary denial because the motion below failed to comply with the requirements of that rule. See Jolly v. State, 392 So.2d 54 (Fla. 5th DCA 1981). The motion failed to state whether an appeal or other post-conviction remedies had been undertaken, Evans v. State, 388 So.2d 1366 (Fla. 5th DCA 1980); Saxon v. State, 384 So.2d 35 (Fla. 5th DCA 1980), and it was not under oath. See Gorham v. State, 494 So.2d 211 (Fla.1986); Scott v. State, 464 So.2d 1171 (Fla.1985). However, as we see it, Martin's unsworn motion, signed by her trial counsel, was properly filed pursuant to Florida Rule of Criminal Procedure 3.800(a), which does not contain the procedural requirements of Rule 3.850. 1

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13 practice notes
  • Vanderblomen v. State, No. 97-2557
    • United States
    • Court of Appeal of Florida (US)
    • March 24, 1998
    ...receive all of his jail time credit attacks the sentence as being illegal Page 146 and ... can be raised at any time"); Martin v. State, 525 So.2d 901, 902 (Fla. 5th DCA 1987)(opinion on rehearing)(reading the Florida Supreme Court's opinion in Daniels to mean that "a sentence is illegal if......
  • State v. Mancino, No. 90516
    • United States
    • United States State Supreme Court of Florida
    • June 11, 1998
    ...did not receive all of his jail time credit attacks the sentence as being illegal and ... can be raised at any time"); Martin v. State, 525 So.2d 901, 902 (Fla. 5th DCA 1987) (opinion on rehearing) (reading the Florida Supreme Court's opinion in Daniels[v. State, 491 So.2d 543 (Fla. 1986)] ......
  • McGowan v. State, No. 91-208
    • United States
    • Court of Appeal of Florida (US)
    • October 3, 1991
    ..."at trial", but it seems to have been commonly assumed that "at trial" includes plea and sentencing hearings. 5 See Martin v. State, 525 So.2d 901 (Fla. 5th DCA 1987); Brown v. State, 510 So.2d 1150 (Fla. 1st DCA 1987); DeSantis v. State, 400 So.2d 525 (Fla. 5th DCA 6 See also Morales v. St......
  • Thomas v. State, No. 92-03418
    • United States
    • Court of Appeal of Florida (US)
    • January 6, 1993
    ...reflects some ambiguity as to which rule of criminal procedure should be employed to file a motion for jail credit. See Martin v. State, 525 So.2d 901 (Fla. 5th DCA 1988); Sanders v. State, 579 So.2d 326 (Fla. 5th DCA 1991); Morgan v. State, 557 So.2d 605 (Fla. 1st DCA 1990). The Fifth Dist......
  • Request a trial to view additional results
13 cases
  • Vanderblomen v. State, No. 97-2557
    • United States
    • Court of Appeal of Florida (US)
    • March 24, 1998
    ...all of his jail time credit attacks the sentence as being illegal Page 146 and ... can be raised at any time"); Martin v. State, 525 So.2d 901, 902 (Fla. 5th DCA 1987)(opinion on rehearing)(reading the Florida Supreme Court's opinion in Daniels to mean that "a sentence is illegal ......
  • State v. Mancino, No. 90516
    • United States
    • United States State Supreme Court of Florida
    • June 11, 1998
    ...not receive all of his jail time credit attacks the sentence as being illegal and ... can be raised at any time"); Martin v. State, 525 So.2d 901, 902 (Fla. 5th DCA 1987) (opinion on rehearing) (reading the Florida Supreme Court's opinion in Daniels[v. State, 491 So.2d 543 (Fla. 1986)]......
  • McGowan v. State, No. 91-208
    • United States
    • Court of Appeal of Florida (US)
    • October 3, 1991
    ...but it seems to have been commonly assumed that "at trial" includes plea and sentencing hearings. 5 See Martin v. State, 525 So.2d 901 (Fla. 5th DCA 1987); Brown v. State, 510 So.2d 1150 (Fla. 1st DCA 1987); DeSantis v. State, 400 So.2d 525 (Fla. 5th DCA 6 See also Morales v. Stat......
  • Thomas v. State, No. 92-03418
    • United States
    • Court of Appeal of Florida (US)
    • January 6, 1993
    ...reflects some ambiguity as to which rule of criminal procedure should be employed to file a motion for jail credit. See Martin v. State, 525 So.2d 901 (Fla. 5th DCA 1988); Sanders v. State, 579 So.2d 326 (Fla. 5th DCA 1991); Morgan v. State, 557 So.2d 605 (Fla. 1st DCA 1990). The Fifth Dist......
  • Request a trial to view additional results

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