Bogan v. State

558 So. 2d 201, 1990 Fla. App. LEXIS 1869, 1990 WL 31739

Opinion

PER CURIAM.

Henry Bogan appeals the summary denial of his motion for postconviction relief. We reverse.

This is another case asking for extra credit-time pursuant to State v. Green, 547 So.2d 925 (Fla.1989). The present motion was filed in circuit court case number 82-5702, which appears to be only one of several cases disposed of simultaneously. Some combination of prison and probation was imposed in 1987. In 1989 Bogan, having been released early from confinement, was arrested for violation of probation and resentenced to prison. He now maintains that he was credited only for the days actually spent in prison and not for gain time awarded.

In response to the motion the trial court attached to its order a transcript of a hearing held, in connection with the 1989 resentencing, “to figure out the credit.” Our review of this transcript suggests that our recent decision in Harris v. State, 557 So.2d 198 (Fla. 2d DCA 1990) may preclude Bogan from entitlement to the extra credit-time. It was represented at one point in the hearing that Bogan, in case number 82-5702, had received only probation, and no prison time, in 1987. However, both Bogan and his attorney stated that he served prison time in this case. We must conclude that the transcript, standing alone, does not conclusively refute Bogan’s present motion. Accordingly, we must remand this case for further proceedings consistent with Florida Rule of Criminal Procedure 3.850.

After remand the trial court should reexamine the files and records in this case to determine whether anything therein, such as written judgment and sentence forms, conclusively refutes Bogan’s allegations. If not, the court should order a response from the state or, if necessary, conduct an evidentiary hearing on the motion.

Reversed.

DANAHY, A.C.J., and SCHOONOVER and PATTERSON, JJ., concur.