Pevey v. State

District Court of Appeal of Florida

Pevey v. State

58 So. 3d 437, 2011 Fla. App. LEXIS 5563, 2011 WL 1492003

CourtDistrict Court of Appeal of Florida

DecidedApril 20, 2011

DocketNo. 2D10-3963

StatusPublished

This text of 58 So. 3d 437 (Pevey 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

Pevey v. State, 58 So. 3d 437, 2011 Fla. App. LEXIS 5563, 2011 WL 1492003 (Fla. Ct. App. 2011).

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Opinion

WHATLEY, Judge.

Dana Alan Pevey appeals the order granting in part and denying in part his motion pursuant to Florida Rule of Criminal Procedure 3.800(a) seeking proper credit for time served. The postconviction court determined that Pevey was entitled to five more days credit than he had received, and it awarded him those five additional days on count one only. Consequently, the court denied Pevey’s assertion that the sentencing court had orally pronounced that he would receive credit against both counts of his consecutive sentences. The record before us does not contain the sentencing transcript, and it was not attached to either Pevey’s motion or the court’s order. Accordingly, we remand for the postconviction court to determine whether the transcript is in the record. If it is, the court shall either grant Pevey’s motion or deny it and attach the portions of the record refuting Pevey’s claim. If the transcript is not in the record, the court shall deny Pevey’s motion without prejudice to him filing an amended motion with the relevant portion of the transcript attached. See Beard v. State, 27 So.3d 186, 187-88 (Fla. 5th DCA 2010) (citing Williams v. State, 957 So.2d 600, 604 (Fla.2007)).

Remanded with directions.

KELLY and LaROSE, JJ., Concur.

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WHATLEY, Judge.

Dana Alan Pevey appeals the order granting in part and denying in part his motion pursuant to Florida Rule of Criminal Procedure 3.800(a) seeking proper credit for time served. The postconviction court determined that Pevey was entitled to five more days credit than he had received, and it awarded him those five additional days on count one only. Consequently, the court denied Pevey’s assertion that the sentencing court had orally pronounced that he would receive credit against both counts of his consecutive sentences. The record before us does not contain the sentencing transcript, and it was not attached to either Pevey’s motion or the court’s order. Accordingly, we remand for the postconviction court to determine whether the transcript is in the record. If it is, the court shall either grant Pevey’s motion or deny it and attach the portions of the record refuting Pevey’s claim. If the transcript is not in the record, the court shall deny Pevey’s motion without prejudice to him filing an amended motion with the relevant portion of the transcript attached. See Beard v. State, 27 So.3d 186, 187-88 (Fla. 5th DCA 2010) (citing Williams v. State, 957 So.2d 600, 604 (Fla.2007)).

Remanded with directions.

KELLY and LaROSE, JJ., Concur.

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Bluebook (online)

58 So. 3d 437, 2011 Fla. App. LEXIS 5563, 2011 WL 1492003, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pevey-v-state-fladistctapp-2011.

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