Swyck v. State, No. 96-04736

CourtCourt of Appeal of Florida (US)
Writing for the CourtPER CURIAM
Citation693 So.2d 618
Decision Date26 March 1997
Docket NumberNo. 96-04736
Parties22 Fla. L. Weekly D797 Gary L. SWYCK, Appellant, v. STATE of Florida, Appellee.

Page 618

693 So.2d 618
22 Fla. L. Weekly D797
Gary L. SWYCK, Appellant,
v.
STATE of Florida, Appellee.
No. 96-04736.
District Court of Appeal of Florida,
Second District.
March 26, 1997.

PER CURIAM.

Gary L. Swyck challenges the trial court's denial of his motion to correct sentence filed

Page 619

pursuant to Florida Rule of Criminal Procedure 3.800. We reverse because the trial court failed to address and refute his claim that he was not properly credited with time spent in jail prior to the imposition of his sentence.

In 1981 Swyck was sentenced to prison to be followed by probation on a separate case. During this later period of supervision, he violated his probation and was again sentenced to prison. He claimed in his motion an entitlement to credit for the earlier time served in prison relying on Tripp v. State, 622 So.2d 941 (Fla.1993). As the imposition of his first sentence predated the sentencing guidelines which were effective on October 1, 1983, the dangers in sentencing which Tripp eliminated did not inhere in his circumstances. As the prison sentence in the second case was not factored into any guideline calculation initially, Tripp does not apply. Slater v. State, 639 So.2d 80 (Fla. 2d DCA 1994). See also Duncan v. State, 686 So.2d 701 (Fla. 2d DCA 1996).

Swyck's second complaint is that he was not properly credited with twelve days spent in the county jail between his arrest for violation of probation and the sentence which followed. This court has consistently afforded relief to those complaining that the failure of the trial court to award credit for jail time served rendered their sentences illegal, and was hence subject to correction in a proceeding pursuant to Florida Rule of Criminal Procedure 3.800(a). This, however, is not the majority view in this state, and two district courts have certified this question to the Florida Supreme Court for consideration. Berry v. State, 684 So.2d 239 (Fla. 1st DCA 1996); Sullivan v. State, 674 So.2d 214 (Fla. 4th DCA 1996). 1

We acknowledge conflict with the decisions of the First, Fourth, and Fifth District Courts of Appeal which adopt the view that Davis v. State, 661 So.2d 1193 (Fla.1995), prohibits relief from the denial of jail credit by means of a motion to correct an illegal sentence without regard to the impact that failure may have had in "creating" a sentence which exceeds the statutory maximum allowable sanction. In so doing we confirm the decisions of this court which...

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12 practice notes
  • Vanderblomen v. State, No. 97-2557
    • United States
    • Court of Appeal of Florida (US)
    • March 24, 1998
    ...the particular offense, and acknowledged conflict on this point with this court, and the fourth and fifth districts. See Swyck v. State, 693 So.2d 618, 619 (Fla. 2d DCA), review granted, 699 So.2d 1376 (Fla.1997); see also Mizzell v. State, 702 So.2d 606, 606 n. 1 (Fla. 2d DCA 1997)(noting ......
  • State v. Mancino, No. 90516
    • United States
    • United States State Supreme Court of Florida
    • June 11, 1998
    ...jail credit issues may be addressed by a rule 3.800(a) motion. See Street v. State, 693 So.2d 695 (Fla. 2d DCA 1997); Swyck v. State, 693 So.2d 618 (Fla. 2d DCA 1997); review granted, No. 90,358, 699 So.2d 1376 (Fla. Sept.5, 1997); Thomas, 611 So.2d 600. I continue to believe there are some......
  • Chojnowski v. State, No. 97-02433
    • United States
    • Court of Appeal of Florida (US)
    • November 19, 1997
    ...jail credit issues may be addressed by a rule 3.800(a) motion. See Street v. State, 693 So.2d 695 (Fla. 2d DCA 1997); Swyck v. State, 693 So.2d 618 (Fla. 2d DCA 1997); review granted, No. 90,358, 699 So.2d 1376 (Fla. Sept. 5, 1997); Thomas, 611 So.2d 600. I continue to believe there are som......
  • Moreland v. State, No. 97-1213
    • United States
    • Court of Appeal of Florida (US)
    • October 29, 1997
    ...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 app......
  • Request a trial to view additional results
12 cases
  • Vanderblomen v. State, No. 97-2557
    • United States
    • Court of Appeal of Florida (US)
    • March 24, 1998
    ...the particular offense, and acknowledged conflict on this point with this court, and the fourth and fifth districts. See Swyck v. State, 693 So.2d 618, 619 (Fla. 2d DCA), review granted, 699 So.2d 1376 (Fla.1997); see also Mizzell v. State, 702 So.2d 606, 606 n. 1 (Fla. 2d DCA 1997)(noting ......
  • State v. Mancino, No. 90516
    • United States
    • United States State Supreme Court of Florida
    • June 11, 1998
    ...jail credit issues may be addressed by a rule 3.800(a) motion. See Street v. State, 693 So.2d 695 (Fla. 2d DCA 1997); Swyck v. State, 693 So.2d 618 (Fla. 2d DCA 1997); review granted, No. 90,358, 699 So.2d 1376 (Fla. Sept.5, 1997); Thomas, 611 So.2d 600. I continue to believe there are some......
  • Chojnowski v. State, No. 97-02433
    • United States
    • Court of Appeal of Florida (US)
    • November 19, 1997
    ...jail credit issues may be addressed by a rule 3.800(a) motion. See Street v. State, 693 So.2d 695 (Fla. 2d DCA 1997); Swyck v. State, 693 So.2d 618 (Fla. 2d DCA 1997); review granted, No. 90,358, 699 So.2d 1376 (Fla. Sept. 5, 1997); Thomas, 611 So.2d 600. I continue to believe there are som......
  • Moreland v. State, No. 97-1213
    • United States
    • Court of Appeal of Florida (US)
    • October 29, 1997
    ...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 app......
  • Request a trial to view additional results

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