DENTY v. STATE (1999)

This is an appeal from a denial of appellant's motion to correct an illegal sentence, which he filed pursuant to Florida Rule Criminal Procedure 3.800.   We treat the motion as if it were filed in compliance with rule 3.850 and affirm.

In his motion, appellant sought an additional 73 days' jail credit.   He alleged that he had been held continuously from March 24, 1997, until sentencing on September 5, 1997, for a total of 166 days, but only received credit for 93 days.   The trial court denied the motion, finding that appellant had spent 93 days in jail prior to sentencing, and in support of this finding, it attached the Columbia County Detention Center Jail Credit Certificate.   Because the record conclusively refutes appellant's allegations, the order denying the motion for additional jail credit is affirmed.   In so saying, we note no apparent error or miscalculation in the jail credit certificate as was present in the cases cited in the dissent.

AFFIRMED.

I respectfully dissent.   I would remand with directions to treat the appellant's timely, sworn motion as if it had been filed under Florida Rule of Criminal Procedure 3.850, and conduct an evidentiary hearing.   See generally, e.g., Turner v. State, 670 So.2d 1031 (Fla. 2d DCA 1996).   Cf. Edwards v. State, 700 So.2d 444, 445 (Fla. 1st DCA 1997) (holding court unable to treat an unsworn motion seeking credit for jail time under Florida Rule of Criminal Procedure 3.800 “as if filed pursuant to rule 3.850”).

On review of prior orders denying collateral motions seeking credit for jail time we have declined to give jail credit certificates from the Columbia County Detention Center preclusive effect.   See Boston v. State, 24 Fla. L. Weekly D621, D621, 728 So.2d 326 (Fla. 1st DCA 1999) (noting “mathematical error which resulted in a miscalculation”);  Nelson v. State, 720 So.2d 1104, 1105 (Fla. 1st DCA 1998) (noting “what may have been a crucial clerical error”).   It is ultimately for the court, not the jailer, to ascertain “the amount of time ․ served in jail prior to sentencing.”  Walker v. State, 650 So.2d 233, 233 (Fla. 1st DCA 1995).

PER CURIAM.

ERVIN and BOOTH, JJ., CONCUR. BENTON, J., DISSENTS WITH OPINION.