Opinion
No. AZ-137.
October 2, 1984. Rehearing Denied January 30, 1985.
Appeal from the Circuit Court, Bay County, W. Fred Turner, J.
David Thomas Buxton, in pro. per.
Jim Smith, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appellee.
In this appeal from a denial, without hearing, of his Rule 3.850 motion, Buxton contends that he was entitled to postconviction relief because the trial court, in imposing sentence, failed to credit him for time which Buxton had spent in a Georgia jail on the Florida detainer while he was fighting extradition. We reject that contention on the authority of Kurlin v. State, 302 So.2d 147 (Fla. 1st DCA 1974), and Kronz v. State, 440 So.2d 49 (Fla. 1st DCA 1983). However, as in Kronz, we certify that our holding conflicts with Zulla v. State, 404 So.2d 202 (Fla. 2d DCA 1981), and Rehfuss v. State, 432 So.2d 639 (Fla. 4th DCA 1983).
Buxton also contends that he was entitled to relief because the trial court, in retaining jurisdiction pursuant to Section 947.16(3), Florida Statutes (1979), failed to state, either in writing or in open court, the justification for retention of jurisdiction as required by Section 947.16(3)(a). This is a ground which has been recognized as properly cognizable via a Rule 3.850 motion. See Snow v. State, 443 So.2d 1074 (Fla. 1st DCA 1984); Sawyer v. State, 401 So.2d 939 (Fla. 1st DCA 1981). The order denying Buxton's 3.850 motion without hearing does not attach any portion of the record which refutes that allegation as required by Rule 3.850. Therefore, we remand the case to the trial court for further proceedings consistent with this opinion. In the event that the court denies the motion without hearing, the court will attach to its order those portions of the record which contain the justification for retention articulated by the court when the defendant was sentenced. However, if, when the defendant was sentenced, the trial court failed to state its justification for retention with particularity as required by Section 947.16(3)(a), the trial court is directed to either state the requisite justification or vacate the retention. See Saname v. State, 448 So.2d 14 (Fla. 1st DCA 1984).
With respect to the remaining grounds asserted in Buxton's motion, we affirm the trial court's order of denial.
Affirmed in part and reversed in part and remanded.
WENTWORTH, J., concurs;
SHIVERS, J., concurs specially.
ON REHEARING
The State has filed a motion for rehearing contending in part that neither of the issues raised by appellant in his motion for post-conviction relief and addressed in our opinion is properly cognizable via a Rule 3.850 motion. Appellee argues that the issues of credit for jail time served prior to sentencing and retention of jurisdiction without specified reasons involve procedural errors which could have been raised at trial and, if preserved, on direct appeal.
With regard to the retention of jurisdiction issue, appellee requests that we certify that the instant decision is in direct and express conflict with a decision of another district court of appeal on the same point of law. We recognize that our decision in this case conflicts with the Second District's opinion in Pedroso v. State, 420 So.2d 908 (Fla. 2d DCA 1982), which holds that the trial court's failure to state with particularity its reasons for retaining jurisdiction can be raised only on direct appeal. Accordingly, we certify this conflict to the Florida Supreme Court.
In view of the divergent views which appear to be emanating from the several district courts concerning the raising of alleged sentencing errors by direct appeal and Rule 3.850 motion, and the impact on the same by the Supreme Court's decision in State v. Rhoden, 448 So.2d 1013 (Fla. 1984), we certify, in addition to the question certified in our original opinion, the following questions to be of great public importance:
(1) Whether a trial court's failure to credit a defendant with time spent in a Florida or foreign jail prior to sentencing may be raised by a Rule 3.850 motion, or must such be raised by direct appeal?
(2) Whether a trial court's failure to state with particularity the reasons for retention of jurisdiction under Section 947.16, Florida Statutes, may be raised by a Rule 3.850 motion, or must such be raised by direct appeal?
Appellee's motion for rehearing is denied as are appellee's motion to rescind certification and motion to stay.
Appellant also has filed a motion for rehearing and an amended motion for rehearing, which we find to be without merit and deny.
SHIVERS, WENTWORTH and NIMMONS, JJ., concur.
I concur in Judge Nimmons' opinion, except to note that I agree with Zulla and favor receding from Kurlin and Kronz.