Westberry v. State

District Court of Appeal of Florida

Westberry v. State

557 So. 2d 240, 1990 Fla. App. LEXIS 1267, 1990 WL 18480

CourtDistrict Court of Appeal of Florida

DecidedMarch 2, 1990

DocketNo. 90-00360

StatusPublished

This text of 557 So. 2d 240 (Westberry 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.

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Westberry v. State, 557 So. 2d 240, 1990 Fla. App. LEXIS 1267, 1990 WL 18480 (Fla. Ct. App. 1990).

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Opinion

PER CURIAM.

Elliott Westberry appeals the summary denial of his motion to correct sentence. We reverse.

Westberry states that he was sentenced to four years in prison, followed by two years community control, in 1988.¹ He was released in July, 1989, and subsequently violated community control. The court then sentenced Westberry to six years in prison with credit only for 129 days spent in jail following his second arrest.² West-berry seeks credit for all time served on the first prison sentence, including gain time. See State v. Green, 547 So.2d 925 (Fla.1989); Dixon v. State, 546 So.2d 1194 (Fla. 3d DCA 1989). The trial court’s order fails to refute this claim.

Accordingly, we remand this case for further proceedings in accordance with Florida Rule of Criminal Procedure 3.850.

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

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PER CURIAM.

Elliott Westberry appeals the summary denial of his motion to correct sentence. We reverse.

Westberry states that he was sentenced to four years in prison, followed by two years community control, in 1988.¹ He was released in July, 1989, and subsequently violated community control. The court then sentenced Westberry to six years in prison with credit only for 129 days spent in jail following his second arrest.² West-berry seeks credit for all time served on the first prison sentence, including gain time. See State v. Green, 547 So.2d 925 (Fla.1989); Dixon v. State, 546 So.2d 1194 (Fla. 3d DCA 1989). The trial court’s order fails to refute this claim.

Accordingly, we remand this case for further proceedings in accordance with Florida Rule of Criminal Procedure 3.850.

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

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557 So. 2d 240, 1990 Fla. App. LEXIS 1267, 1990 WL 18480, Counsel Stack Legal Research, https://law.counselstack.com/opinion/westberry-v-state-fladistctapp-1990.

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