Moreland v. State, 97-1213

Citation700 So.2d 800
Decision Date29 October 1997
Docket NumberNo. 97-1213,97-1213
Parties22 Fla. L. Weekly D2507 Nathaniel MORELAND, Appellant, v. STATE of Florida, Appellee.
CourtCourt of Appeal of Florida (US)

Appeal of order denying rule 3.800(a) motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Susan Lebow, Judge; L.T. Case No. 88-22238CF10.

Nathaniel Moreland, Bushnell, pro se.

Robert A. Butterworth, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

Appellant Nathaniel Moreland appeals the summary denial of his rule 3.800(a) motion for additional credit for jail time served. We affirm in part and reverse in part and remand.

Appellant was found guilty of one count of possession of a firearm by a convicted felon, a second degree felony, and two counts of aggravated assault, each a third degree felony. For the first count, he was sentenced to eight years, concurrent with the sentences imposed in the other two counts, with 12 days credit for incarceration. For each of the other two counts, he was sentenced to five years, with a three-year mandatory minimum, with the sentence for count III consecutive to that for count II, and credited with 12 days of incarceration. His sentence became final on December 21, 1990, when the mandate issued affirming his direct appeal.

On June 27, 1996, Appellant filed a motion to allow credit for jail time served, alleging that he was entitled jail credits in the following amounts: (1) 21 days after his arrest in Savannah, Georgia; (2) 2 days travel time when extradited to Florida; (3) 1 day in Broward County Jail prior to bonding out; (4) 4 months in Broward County Jail after his bond was revoked; (5) 31 days prior to sentencing after he bonded out and bond was again revoked; and (6) 8 days after sentencing prior to transfer to the department of corrections. His motion requested additional credit to the extent the foregoing exceeded the twelve days awarded upon sentencing. The trial court summarily denied the motion without attaching any record excerpts, based on the state's response that a motion to correct jail time credit is no longer cognizable on a rule 3.800(a) motion. See Sullivan v. State, 674 So.2d 214 (Fla. 4th DCA 1996).

We affirm without prejudice the denial with respect to the credit requested for time served after sentencing. Appellant's remedy is to request the credit from the Department of Corrections; after exhausting his administrative remedy, Appellant may file a petition for writ of mandamus against the Department. See Taylor v. State, 677 So.2d 75 (Fla. 4th DCA 1996); Washington v. State, 662 So.2d 1027 (Fla. 5th DCA 1995).

We also affirm the denial as to the other relief requested as to the first count, in which Appellant was sentenced to eight years on a second degree felony, which carried a maximum sentence of fifteen years, § 775.082(3)(c). As this court stated in Sullivan, the supreme court provided in Davis v. State, 661 So.2d 1193, 1196 (Fla.1995), that a sentence was illegal, and therefore cognizable under rule 3.800(a), only if it exceeded the maximum allowed by law. Accord Brown v. State, 689 So.2d 1280 (Fla. 5th DCA 1997); Berry v. State, 684 So.2d 239 (Fla. 1st DCA 1996). But see Swyck v. State, 693 So.2d 618 (Fla. 2d DCA 1997); Gonzalez v. State, 678 So.2d 433 (Fla. 3d DCA 1996). Otherwise, according to Sullivan, a claim for such relief would be appropriate in a motion filed pursuant to rule 3.850. However, such a claim would now be time barred in this case. Fla. R.Crim. P. 3.850(b).

However, as to the two counts for third degree felonies, for which the maximum sentence is five years, § 775.082(3)(d), Appellant was sentenced to the five-year maximum for each one. Therefore, any error in crediting him with jail time could cause him to serve a sentence in excess of the maximum allowed by law, making it an illegal sentence under Davis, and cognizable under rule 3.800(a). See Mitchell v. State, 696 So.2d 957 (Fla. 4th DCA 1997) (affirming trial court's order granting rule 3.800(a) motion in part, giving appellant jail time credit against only sentence which consigned him to...

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9 cases
  • Milne v. State, 4D01-3756.
    • United States
    • Florida District Court of Appeals
    • February 6, 2002
    ...DOC has the responsibility of granting post-sentencing jail credit through administrative proceedings); see also Moreland v. State, 700 So.2d 800, 801 (Fla. 4th DCA 1997) Accordingly, we affirm without prejudice to appellant seeking relief through the appropriate means. FARMER and MAY, JJ.,......
  • Hatchett v. State
    • United States
    • Florida District Court of Appeals
    • September 22, 2000
    ...of Corrections. If he were unsuccessful, he would then need to petition the circuit court for a writ of mandamus. See Moreland v. State, 700 So.2d 800 (Fla. 4th DCA 1997) (rather than move to correct an illegal sentence, an appropriate course of action is to request credit from DOC, and, af......
  • Davis v. State, 98-2403
    • United States
    • Florida District Court of Appeals
    • November 6, 1998
    ...No Appearance for Appellee. PER CURIAM. AFFIRMED. See Washington v. State, 662 So.2d 1027 (Fla. 5th DCA 1995); accord, Moreland v. State, 700 So.2d 800 (Fla. 4th DCA 1997); Lucio v. State, 673 So.2d 195 (Fla. 3d DCA GOSHORN, THOMPSON and ANTOON, JJ., concur. ...
  • Felder v. State
    • United States
    • Florida District Court of Appeals
    • February 13, 2013
    ...which must be sought through the Department of Corrections. Hines v. State, 842 So.2d 999, 1000 (Fla. 2d DCA 2003); Moreland v. State, 700 So.2d 800, 801 (Fla. 4th DCA 1997); Washington v. State, 662 So.2d 1027, 1028 (Fla. 5th DCA 1995). If appellant is correct in his assertion that the cus......
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