Tacoby Charles Ross v. State of Florida

221 So. 3d 1290, 2017 WL 3080333, 2017 Fla. App. LEXIS 10468

• Court: District Court of Appeal of Florida
• Decided: July 20, 2017
• Docket: CASE NO. 1D16-4050
• Status: Published

Opinion

PER CURIAM.

Appellant appeals the trial court’s denial of his Florida Rule of Criminal Procedure 3.800(b)(2) motion to. correct a sentencing error. The trial court stated that it .denied Appellant’s motion, because it was required to be filed under Florida Rule of Criminal Procedure 3.801. The issue before us is whether Appellant can seek credit for time served via Florida Rule of Criminal Procedure 3.800(b)(2) during the pendency of a direct appeal.

“If an appeal is pending, a defendant or the state may file in the trial court a motion to correct a sentencing error.” Fla. R. Crim. P. 3.800(b)(2). A motion to correct a final sentence may be filed under Florida Rule of Criminal Procedure 3.801. Fla. R. Crim. P. 3.801(a). Appellant filed his motion during the pendency of his appeal, not after his sentence became final. In the Court Commentary to rule 3,801, the language of the 2013 adoption states that “all jail credit issues must be handled pursuant to this rule”; however, the 2016 Amendment to rule 3.801 clarifies that “rule 3.801 applies to final sentences.” Id, The State concedes error on this issue. We reverse and remand for the trial court’s consideration of Appellant’s motion on the merits.

REVERSED AND REMANDED.

B.L. THOMAS, C.J., LEWIS and ROWE, JJ., CONCUR.