Van Ellis v. State, AV-457
| Decision Date | 19 July 1984 |
| Docket Number | No. AV-457,AV-457 |
| Parties | Larry VAN ELLIS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Michael E. Allen, Public Defender, and Paula S. Saunders, Asst. Public Defender, Tallahassee, for appellant.
Jim Smith, Atty. Gen., and Lawrence A. Kaden, Asst. Atty. Gen., Tallahassee, for appellee.
Appellant appeals the trial court's order of September 26, 1983, revoking his probation, adjudicating him guilty of unarmed robbery, and sentencing him to six years in prison with credit for 139 days previously served in connection with this offense. Appellant alleges error in the amount of credit given for time served and in the trial judge's denial of his October 13, 1983 motion to that effect, entitled "Motion to Allow Credit for Jail Time."
The record shows that on November 3, 1981, appellant was adjudged guilty of the offense of unarmed robbery and was given a split sentence of 364 days in jail with credit for 119 days already served, to be followed by three years probation. On May 10, 1983, he pled guilty to a violation of his probation for which he was sentenced to four months in jail, with three days credit, and his probation was extended for three years. In June, 1983, appellant was charged with a second violation of probation which is the subject of the order appealed.
As in Delgado v. State, 423 So.2d 603 (Fla. 3d DCA 1982), it appears from the record that appellant may not have been given full credit for the jail time he has served. Therefore, upon remand, the trial court should conduct a hearing to determine the time actually served in jail by appellant on the original split sentence and on the sentence imposed as a result of the first violation of probation, and to give appellant appropriate credit for that jail time on the sentence under review. See section 921.161(1), Florida Statutes. Appellant need not be present at the hearing upon remand.
The state argues that since appellant did not object to the alleged sentencing error below, he is precluded from raising this issue on direct appeal and his only possible avenue at this point is via a Florida Rule of Criminal Procedure 3.800 motion in the trial court. We reject that assertion. Appellant properly may raise this issue by direct appeal from the sentence even in the absence of an objection below since the sentencing error is fundamental. Walker v....
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Deel v. State
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