Opinion
No. 96-1447.
September 11, 1996. Certification Denied October 31, 1996.
Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Howard M. Zeidwig, Judge; L.T. Case No. 93-20729CF10A.
David J. Ford, Daytona, pro se.
Robert A. Butterworth, Attorney General, Tallahassee, and Aubin Wade Robinson, Assistant Attorney General, West Palm Beach, for appellee.
This appeal was filed pursuant to Rule 3.800, Florida Rules of Criminal Procedure, claiming that appellant's sentence is illegal because he was entitled to additional jail credit time. Pursuant to this court's remand in Ford v. State, 667 So.2d 455 (Fla. 4th DCA 1996), for failure to make findings and attach record excerpts, the subsequent order entered by the trial court made extensive findings based on record attachments. After this court's remand in Ford, a different panel of this court decided the case of Sullivan v. State, 674 So.2d 214 (Fla. 4th DCA 1996), which was a rule 3.800 appeal on grounds similar to those in the instant case.
The Sullivan court, relying on Davis v. State, 661 So.2d 1193 (Fla. 1995), affirmed the decision of the trial court. In following Sullivan, we affirm the decision of the trial court in this case and grant the appellant leave to seek 3.850 relief within 30 days following the mandate in this case.
Affirmed.
DELL, J., concurs.
GLICKSTEIN, J., dissents with opinion.
The present case is significantly distinguishable from Sullivan v. State, 674 So.2d 214 (Fla. 4th DCA 1996); therefore, that recent decision, in my view, is not a fair basis upon which to affirm.
First, in the present case the motion filed by appellant in the trial court met the formal requirements of Florida Rule of Criminal Procedure 3.850 whereas Sullivan did not.
Second, the state's response in the present case acknowledges that neither the trial court's orders nor the record before us justify the trial court's denial of credit for time served. In fact, to its credit, the state's response concludes:
WHEREFORE the State respectfully requests that this court permit the trial court to attach the appropriate documentation reflecting dates of arrest, length of time actually detained, and the basis for specific denial of credit, or alternatively, if this court consider this matter as being raised pursuant to rule 3.850, an evidentiary hearing to allow for proper record documentation.
In Sullivan, the only response by the state was at the trial court level; and it asserted appellant there was not entitled to relief.