Howard v. State, 705 So. 2d 947 (Fla. 1st DCA 1998). · Go Syfert
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Howard v. State, 705 So. 2d 947 (Fla. 1st DCA 1998). Cases Citing This Book View Copy Cite
10 citation events (6 in the last 25 years) across 1 distinct court.
Strongest positive: Charles v. State (fladistctapp, 1999-04-30)
Top citers, strongest first. 6 distinct citers.
cited Cited as authority (rule) Charles v. State
Fla. Dist. Ct. App. · 1999 · confidence medium
Howard v. State, 705 So.2d 947, 948 (Fla. 1st DCA 1998); see also Maddox v. State, 708 So.2d 617 (Fla. 5th DCA 1998), rev. granted, Table 728 So.2d 203 (Fla. 1999).
cited Cited "see" Murray v. State
Fla. Dist. Ct. App. · 2010 · signal: see · confidence high
See Howard v. State, 705 So.2d 947, 948 (Fla. 1st DCA 1998).
discussed Cited "see" Ryan v. State
Fla. Dist. Ct. App. · 2003 · signal: see · confidence high
See Howard v. State, 705 So.2d 947 (Fla. 1st DCA 1998) (affirming as unpreserved the trial court's failure to award credit for time served).
discussed Cited "see, e.g." Tavaris MacK v. State of Florida
Fla. Dist. Ct. App. · 2026 · signal: see also · confidence medium
See Johnson v. Singletary, 647 So. 2d 106, 109 (Fla. 1994) (“Successive habeas corpus petitions seeking the same relief are not permitted nor can new claims be raised in a second petition when the circumstances upon which they are based were known or should have been known at the time the prior petition was filed.”) (citing Card v. Dugger, 512 So. 2d 829 (Fla. 1987)); see also Moss v. Singletary, 705 So. 2d 947, 947 (Fla. 1st DCA 1998) (affirming an appeal from the trial court’s 1 See 3D25-2175 (dismissing habeas petition without prejudice to seek review of issues raised in the trial cou…
discussed Cited "see, e.g." Locke v. State
Fla. Dist. Ct. App. · 1998 · signal: see, e.g. · confidence low
See, e.g., Howard v. State, 705 So.2d 947 , (Fla. 1st DCA 1998) (affirming as unpreserved the trial court's failure to award credit for time served); Cargle v. State, 701 So.2d 359 (Fla. 1st DCA 1997) (affirming as unpreserved a claim that the trial court erred in sentencing juvenile as adult without considering statutory criteria in section 39.059(7)); Johnson v. State, 697 So.2d 1245 (Fla. 1st DCA 1997) (affirming *1252 as unpreserved a claim that defendant received an improper upward departure sentence because the sole reason given for the departure had already been taken into account in co…
discussed Cited "see, e.g." Dodson v. State
Fla. Dist. Ct. App. · 1998 · signal: see, e.g. · confidence low
See e.g., Howard v. State, 705 So.2d 947 , (Fla. 1st DCA 1998)(affirming as unpreserved the trial court's failure to award credit for time served); Cargle v. State, 701 So.2d 359 (Fla. 1st DCA 1997)(affirming as unpreserved a claim that the trial court erred in sentencing juvenile as adult without considering statutory criteria in section 39.059(7)); Johnson v. State, 697 So.2d 1245 (Fla. 1st DCA 1997)(affirming as unpreserved a claim that defendant received an improper upward departure sentence because the sole reason given for the departure had already been taken into account in computing hi…
Robert L. HOWARD, Jr., Appellant,
v.
STATE of Florida, Appellee.
97-746.
District Court of Appeal of Florida, First District.
Jan 12, 1998.
705 So. 2d 947
Per Curiam.
Cited by 5 opinions  |  Published

Nancy A. Daniels, Public Defender; David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.

Robert A. Butterworth, Attorney General; Charmaine M. Millsaps, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

In this direct criminal appeal, the appellant challenges the failure to award him credit for time served pursuant to Tripp v. State, 622 So.2d 941 (Fla.1993). Because appellant failed to raise this issue either at sentencing[*948] or through a timely motion under Florida Rule of Criminal Procedure 3.800(b), we affirm.

Appellant pled guilty to two counts of possession of cocaine with the intent to sell and two counts of sale of cocaine. He was sentenced to two concurrent three-year terms of incarceration on the possession counts to be followed by two five-year terms of probation on the sale counts. After serving the incarcerative portion of his sentence, appellant violated probation and was sentenced to concurrent five year terms of incarceration on the sale counts. The trial court failed to award him any credit for the time he previously served on the possession counts.

While it seems apparent from the face of the record that appellant did not receive the credit he was due under Tripp, he cannot raise this issue on appeal because it was not preserved below. See Larson v. State, 700 So.2d 388 (Fla. 1st DCA 1997); Johnson v. State, 697 So.2d 1245 (Fla. 1st DCA 1997); Middleton v. State, 689 So.2d 304 (Fla. 1st DCA 1997); Chojnowski v. State, 705 So.2d 915 (Fla. 2d DCA 1997); sec. 924.051(3), Fla. Stat. (Supp.1996).[1] In order to challenge a failure to award jail or prison credit, a defendant must either object at the sentencing hearing or file a rule 3.800(b) motion within thirty days of sentencing.[2]

We also reject appellant's constitutional attacks on section 924.051(3). See Amendments to the Florida Rules of Appellate Procedure, 685 So.2d 773, 774-75 (Fla.1996); Neal v. State, 688 So.2d 392 (Fla. 1st DCA 1997). Accordingly, we affirm.

BARFIELD, C.J., JOANOS, J., and SMITH, Senior Judge, concur.

1 Prior to the enactment of section 924.051, we could have corrected an apparent error with a remand to the trial court. See State v. Montague, 682 So.2d 1085, 1088 (Fla.1996); Davis v. State, 661 So.2d 1193, 1197 (Fla.1995); Taylor v. State, 601 So.2d 540, 541-2 (Fla.1992); State v. Rhoden, 448 So.2d 1013, 1016 (Fla.1984).
2 The only exception is when the failure to award credit results in a sentence that exceeds the statutory maximum. Section 924.051(3) does not bar the appeal of an unpreserved prejudicial error if that error is "fundamental." A sentence in excess of the statutory maximum is illegal and constitutes "fundamental error." See Sanders v. State, 698 So.2d 377 (Fla. 1st DCA 1997).