Summary
In Dominquez v. State, 403 So.2d 609 (Fla. 4th DCA 1981), this court indicated that a defendant convicted of escape was entitled to credit for county jail time served and that the credit should be applied to the sentence from which he escaped.
Summary of this case from State v. FrancisOpinion
No. 80-1361.
September 16, 1981.
Appeal from the Circuit Court, Palm Beach County, Russell H. McIntosh, J.
Richard L. Jorandby, Public Defender, and Jerry L. Schwarz, Asst. Public Defender, West Palm Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Andrea T. Mohel, Asst. Atty. Gen., West Palm Beach, for appellee.
Defendant appeals his conviction and sentence for escape. Defendant asserts error based upon Fouts v. State, 374 So.2d 22 (Fla.2d DCA 1979), because the jury learned of the underlying crime for which defendant was incarcerated at the time of his escape. There was never any question that defendant did in fact escape. He took the stand and admitted doing so. The defense was that defendant was desperate to see his wife and children. During the defendant's testimony, there was confusion about the number of crimes for which defendant had been sentenced. In any event, defendant testified he had been sentenced to some twenty years for numerous different crimes. Under these circumstances, there was certainly no prejudice to the defendant when the jury was advised that defendant had been sentenced for the single underlying crime of burglary. On appeal there was no argument asserting prejudice, and we conclude that under the circumstances of this case defendant may have been helped and was certainly not hurt by disclosure of the underlying crime.
Defendant also contends that the trial court erred in the written sentence by failing to give him credit for time served of 154 days to apply to the sentence from which he had escaped. Although the trial judge's oral pronouncement of sentence was proper, the State concedes the written judgment and sentence provide no credit is to be given for time served. The matter is, therefore, remanded to the trial court with directions to vacate this aspect of the sentence and for correction of this error. Defendant need not be present at the proceedings upon this remand.
AFFIRMED IN PART; REVERSED IN PART.
BERANEK and GLICKSTEIN, JJ., concur.
ANSTEAD, J., concurs specially with opinion.
Although I agree with the majority's assessment that any error committed by the trial judge in reading an amended information to the jury which contained an allegation as to appellant's previous conviction of burglary was harmless, I think it is important to note that this court has previously rejected the holding of Fouts v. State, 374 So.2d 22 (Fla.2d DCA 1979) as it applied to a prosecution for possession of a firearm by a convicted felon. See Parker v. State, 389 So.2d 336 (Fla.4th DCA 1980).