Michael Fulgham v. State

• Court: District Court of Appeal of Florida
• Decided: January 8, 2018
• Docket: 5D17-3178
• Status: Published

Opinion

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

MICHAEL FULGHAM,

Appellant,

v. Case No. 5D17-3178

STATE OF FLORIDA,

Appellee.

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Opinion filed January 12, 2018

3.800 Appeal from the Circuit Court for Seminole County, Donna L. Mcintosh, Judge.

Michael Fulgham, Sneads, pro se.

Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee.

PER CURIAM.

Michael Fulgham appeals the trial court’s order denying his motion for additional

jail credit. See Fla. R. Crim. P. 3.801. He argues that in the absence of any evidence

showing he specifically waived credit for jail time, the trial court erred in relying on his

written plea form to deny his motion. We agree and reverse. See Pippins v. State, 147

So. 3d 665, 665-66 (Fla. 5th DCA 2014). The facts of this case are virtually identical to Pippins, where we reversed an order

summarily denying the appellant’s motion for additional jail credit because the written plea

form did not expressly provide that the appellant waived additional jail credit, and the

appellant specifically alleged that she had not waived the additional credit. Id. at 665.

Here, despite the notation on the plea form that Fulgham would receive fifty-one days

credit for time served, he insists that he did not waive any additional credit for the time he

served in jail. As such, a factual dispute exists regarding waiver that may require a

hearing. See id.; see also Fla. R. Crim. P. 3.801(e). We, therefore, reverse the order

under review and remand for attachment of additional portions of the record, such as the

plea colloquy, specifically refuting Fulgham’s claim or, in the absence of such records, for

an evidentiary hearing. See Pippins, 147 So. 3d at 666; Louis v. State, 143 So. 3d 452,

453 (Fla. 5th DCA 2014) ("When, as in this case, a factual dispute exists, and the files

and records do not conclusively show appellant is entitled to no relief, an evidentiary

hearing is generally required.").

REVERSED and REMANDED with instructions.

TORPY, BERGER and WALLIS, JJ., concur.