Dove v. State

District Court of Appeal of Florida

Dove v. State

120 So. 3d 646, 2013 WL 4764638, 2013 Fla. App. LEXIS 14320

CourtDistrict Court of Appeal of Florida

DecidedSeptember 6, 2013

DocketNo. 5D13-1568

StatusPublished

This text of 120 So. 3d 646 (Dove v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dove v. State, 120 So. 3d 646, 2013 WL 4764638, 2013 Fla. App. LEXIS 14320 (Fla. Ct. App. 2013).

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Opinion

PER CURIAM.

Joshua G. Dove appeals an order denying his motion for postconviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850, seeking additional jail credit against his five-year prison sentence. The trial court denied Dove’s motion without reaching its merits, reasoning that rule 3.850 is only intended for use to collaterally challenge a conviction, and is [647]*647therefore “not appropriate for the relief’ sought (jail credit). This is not correct. A jail credit claim that cannot be determined based upon the face of the record must be raised in a timely rule 8.850 motion if it is to be considered at all. See, e.g., Schlumpf v. State, 76 So.3d 406 (Fla. 2d DCA 2011). As Dove’s motion was filed within two years of the judgment and sentence becoming final, included the requisite oath, and otherwise met the content requirements of rule 3.850, it should have been considered on the merits. Accordingly, we reverse the trial court’s order and remand for a hearing on Dove’s rule 8.850 motion.

REVERSED AND REMANDED.

PALMER, LAWSON and COHEN, JJ., concur.

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PER CURIAM.

Joshua G. Dove appeals an order denying his motion for postconviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850, seeking additional jail credit against his five-year prison sentence. The trial court denied Dove’s motion without reaching its merits, reasoning that rule 3.850 is only intended for use to collaterally challenge a conviction, and is [647]*647therefore “not appropriate for the relief’ sought (jail credit). This is not correct. A jail credit claim that cannot be determined based upon the face of the record must be raised in a timely rule 8.850 motion if it is to be considered at all. See, e.g., Schlumpf v. State, 76 So.3d 406 (Fla. 2d DCA 2011). As Dove’s motion was filed within two years of the judgment and sentence becoming final, included the requisite oath, and otherwise met the content requirements of rule 3.850, it should have been considered on the merits. Accordingly, we reverse the trial court’s order and remand for a hearing on Dove’s rule 8.850 motion.

REVERSED AND REMANDED.

PALMER, LAWSON and COHEN, JJ., concur.

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Bluebook (online)

120 So. 3d 646, 2013 WL 4764638, 2013 Fla. App. LEXIS 14320, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dove-v-state-fladistctapp-2013.

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