Schebel v. State, No. 97-2879.

CourtCourt of Appeal of Florida (US)
Writing for the CourtPER CURIAM.
Citation721 So.2d 1177
Docket NumberNo. 97-2879.
Decision Date17 February 1998
PartiesTimothy SCHEBEL, Appellant, v. STATE of Florida, Appellee.

721 So.2d 1177

Timothy SCHEBEL, Appellant,
v.
STATE of Florida, Appellee

No. 97-2879.

District Court of Appeal of Florida, First District.

February 17, 1998.


Timothy Schebel, pro se.

Robert A. Butterworth, Attorney General, Trina Kramer, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

Schebel appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Finding no error as to the first two issues, which were ineffectiveness claims that were either untimely or facially insufficient, we affirm. However, we reverse and remand as to the third issue in which appellant asserted that the trial court erred in summarily denying his motion, because his sentences exceeded the statutory maximum for youthful offenders and the court did not apply the permissible credit for time served and gain time. It appears appropriate to consider this third claim under Florida Rule of Criminal Procedure 3.800(a).

In regard to this point, appellant alleged under oath that when he was sentenced for multiple offenses as a youthful offender in May 1990 to four years of imprisonment followed by three years of probation, such sentences were outside the six-year maximum provided by law under section 958.04, Florida Statutes (1989). He further alleged that when the court revoked his probation1 for new substantive offenses committed in 1991, it again exceeded the six-year statutory maximum set forth in section 958.14, Florida Statutes (1989), by sentencing him to seven-and-a-half years, and particularly so, he urged, in that he had previously completed the earlier four-year imprisonment term. Another sentence of seven years, imposed on

721 So.2d 1178
August 14, 1995, following a later probation violation for a new substantive offense, likewise surpassed the six-year maximum. Additionally, appellant maintained that he was entitled to credit for time served and gain time

On appeal, the state concedes that at the time appellant committed his initial crimes, the statute authorized resentencing of a youthful offender following a violation of probation to no more than six years, with credit for time served while incarcerated. See § 958.14, Fla. Stat. (1989); Gardner v. State, 656 So.2d 933, 937 (Fla. 1st DCA 1995). Although the statute was subsequently amended to allow for a longer sentence for a substantive probation violation, the state recognizes that the amended statute cannot be applied to appellant, because of the ex post facto prohibition. See § 958.14, Fla. Stat. (Supp.1990); Reeves v. State, 605 So.2d 562 (Fla. 2d DCA 1992). The state notes, however, that the trial court was not limited by the youthful offender act as to the...

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4 practice notes
  • Swilley v. State, No. 2D00-3368.
    • United States
    • Court of Appeal of Florida (US)
    • 7 Marzo 2001
    ...motions were filed pursuant to rule 3.800(a). Moreover, both issues are properly raised in a rule 3.800(a) motion. See Schebel v. State, 721 So.2d 1177, 1177 (Fla. 1st DCA 1998); Belcher v. State, 685 So.2d 1343, 1343 (Fla. 2d DCA 1996); Tipper v. State, 674 So.2d 934, 934 (Fla. 3d DCA 1996......
  • Goelz v. State, No. 4D06-2472.
    • United States
    • Court of Appeal of Florida (US)
    • 27 Septiembre 2006
    ...be challenged in a rule 3.800(a) motion. See Bryant v. State, 859 So.2d 1269 (Fla. 4th DCA 2003); Kelly; Louissaint; Schebel v. State, 721 So.2d 1177 (Fla. 1st DCA The circuit court's order is reversed. On remand, appellant has the option of withdrawing his plea. If he elects not to withdra......
  • Kelly v. State, No. 99-629.
    • United States
    • Court of Appeal of Florida (US)
    • 16 Julio 1999
    ...youthful offender sentences and the trial court would not normally be bound by the youthful offender limitation. Cf. Schebel v. State, 721 So.2d 1177 (Fla. 1st DCA 1998), appeal dismissed, 723 So.2d 830 (Fla.1999), (consecutive youthful offender sentences exceeding applicable maximum of six......
  • Bryant v. State, No. 4D03-3732.
    • United States
    • Court of Appeal of Florida (US)
    • 26 Noviembre 2003
    ...4th DCA 2002); Hill v. State, 698 So.2d 931 (Fla. 4th DCA 1997); Swilley v. State, 781 So.2d 458 (Fla. 2d DCA 2001); Schebel v. State, 721 So.2d 1177 (Fla. 1st DCA 1998) rev. dism. 723 So.2d 830 (Fla. The merit of Bryant's claim may hinge on whether his violation of probation was substantiv......
4 cases
  • Swilley v. State, No. 2D00-3368.
    • United States
    • Court of Appeal of Florida (US)
    • 7 Marzo 2001
    ...motions were filed pursuant to rule 3.800(a). Moreover, both issues are properly raised in a rule 3.800(a) motion. See Schebel v. State, 721 So.2d 1177, 1177 (Fla. 1st DCA 1998); Belcher v. State, 685 So.2d 1343, 1343 (Fla. 2d DCA 1996); Tipper v. State, 674 So.2d 934, 934 (Fla. 3d DCA 1996......
  • Goelz v. State, No. 4D06-2472.
    • United States
    • Court of Appeal of Florida (US)
    • 27 Septiembre 2006
    ...be challenged in a rule 3.800(a) motion. See Bryant v. State, 859 So.2d 1269 (Fla. 4th DCA 2003); Kelly; Louissaint; Schebel v. State, 721 So.2d 1177 (Fla. 1st DCA The circuit court's order is reversed. On remand, appellant has the option of withdrawing his plea. If he elects not to withdra......
  • Kelly v. State, No. 99-629.
    • United States
    • Court of Appeal of Florida (US)
    • 16 Julio 1999
    ...youthful offender sentences and the trial court would not normally be bound by the youthful offender limitation. Cf. Schebel v. State, 721 So.2d 1177 (Fla. 1st DCA 1998), appeal dismissed, 723 So.2d 830 (Fla.1999), (consecutive youthful offender sentences exceeding applicable maximum of six......
  • Bryant v. State, No. 4D03-3732.
    • United States
    • Court of Appeal of Florida (US)
    • 26 Noviembre 2003
    ...4th DCA 2002); Hill v. State, 698 So.2d 931 (Fla. 4th DCA 1997); Swilley v. State, 781 So.2d 458 (Fla. 2d DCA 2001); Schebel v. State, 721 So.2d 1177 (Fla. 1st DCA 1998) rev. dism. 723 So.2d 830 (Fla. The merit of Bryant's claim may hinge on whether his violation of probation was substantiv......

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