Opinion
Case No. 5D05-2974.
Opinion filed December 16, 2005.
3.850 Appeal from the Circuit Court for Volusia County, William A. Parsons, Judge.
Nicola Palmucci, Jasper, pro se.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appellee.
Nicola Palmucci appeals the summary denial of his rule 3.850 motion for postconviction relief. The trial court denied the 3.850 motion, stating it was successive because Palmucci previously raised the jail credit issue in a rule 3.800(a) motion to correct illegal sentence. We reverse for an evidentiary hearing on the merits.
Palmucci pled guilty to manslaughter with a deadly weapon on 30 January 2004. He was sentenced to 12 years incarceration with credit for 750 days served. In the 3.850 motion, Palmucci claims that he is entitled to 775 days jail credit. Palmucci alleges that he told trial counsel the proper jail credit, but counsel failed to raise the matter at sentencing. In denying the 3.850 motion, the trial court attached the order denying the 3.800(a) motion. In that motion, Palmucci sought 789 days credit for time previously served in jail as opposed to 750 days for which he received credit. The trial court denied the 3.800(a) motion because trial counsel and the prosecutor agreed at sentencing that defendant was to receive 750 days credit.
The prior 3.800(a) motion was properly denied. To obtain relief on a jail credit issue in that type of proceeding, it must be clear on the record that defendant is entitled to additional credit. See State v. Mancino, 714 So. 2d 429 (Fla. 1998) (holding claim for jail credit is cognizable in rule 3.800(a) motion to extent that court records reflect an undisputed entitlement to credit and a sentence that fails to grant such relief). Because jail credit was stipulated, it was not clear on the face of the record that defendant was entitled to additional credit. The question now is whether Palmucci can reargue the same jail credit issue in a rule 3.850 motion alleging ineffective assistance of counsel.
It is not necessary in a rule 3.850 proceeding for the record to show a clear entitlement to additional credit because the rule provides for evidentiary hearings. Palmucci claims that he told counsel about the "discrepancy," i.e., that he was entitled to additional credit, but counsel failed to raise the issue at sentencing. Palmucci's allegations are legally sufficient to require attachments or an evidentiary hearing. He seeks the appropriate remedy via a rule 3.850 motion that allows an evidentiary hearing. See Ingledue v. State, 734 So. 2d 518 (Fla. 5th DCA 1999) (holding defendant's 3.850 motion based on allegations of ineffective assistance of counsel was not successive to prior 3.800(a) motions to correct jail time);Thomas v. State, 611 So. 2d 600 (Fla. 2d DCA 1993) (ruling rule 3.850 is the proper remedy to obtain additional jail credit if the facts are not ascertainable from the record); Sanders v. State, 579 So. 2d 326 (Fla. 5th DCA 1991) (stating jail credit issue may be raised in either rule 3.850 or 3.800(a) motion).See also Williams v. State, 642 So. 2d 1212 (Fla. 5th DCA 1994) (holding error to summarily deny rule 3.800(a) motion seeking credit for pre-plea jail time without attaching record or permitting defendant to file sworn 3.850 motion).
The State asserts that the 3.850 motion is legally insufficient because defendant failed to allege that he would not have entered the guilty plea had he known counsel would incorrectly calculate his credit for time served. However, it does not appear from the sentencing transcript that the jail credit was a term of the plea agreement. It was at sentencing after the plea that the prosecutor and defense counsel agreed to the amount of jail credit. Appellant claims the calculation was incorrect and counsel was ineffective for not calculating the proper credit. The order denying relief is reversed, and the case is remanded to the trial court to consider Palmucci's postconviction claim on the merits.
REVERSED and REMANDED with directions.
SAWAYA and ORFINGER, JJ., concur.