5D10-3218 Robert Kaye v. State

State: Florida

Court: Florida Fifth District Court

Docket No: 5D10-3218

Case Date: 06/27/2011

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2011

ROBERT F. KAYE, Appellant, v. STATE OF FLORIDA, Appellee. ________________________________/ Opinion filed July 1, 2011 Appeal from the Circuit Court for Brevard County, James H. Earp, Judge. James S. Purdy, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant. Pamela Jo Bondi, Attorney Tallahassee, and Megan Assistant Attorney General, Beach, for Appellee. General, Saillant, Daytona Case No. 5D10-3218

PER CURIAM. Robert Kaye appeals the trial court's failure to award him credit for time served. We affirm. Kaye was sentenced on a revocation of probation on August 31, 2010. At sentencing, he did not object when the trial court announced his credit for time served. After filing an appeal, Kaye filed a pro se motion seeking additional jail credit pursuant to Florida Rule of Criminal Procedure 3.800(a). The trial court struck the motion for two

reasons.

First, the trial court was divested of jurisdiction to consider the motion

because it was filed after the notice of appeal.1 Second, the pro se motion was a nullity because it was filed while Kaye was represented by counsel. On appeal, Kaye claims he should have been credited for time served in Hamilton County. Whether Kaye is entitled to that credit is not clear from the face of the record, and his failure to object to not receiving the proper jail credit renders this issue unpreserved for appellate review. See Murray v. State, 36 So. 3d 792, 793 (Fla. 1st DCA 2010). AFFIRMED. ORFINGER, C.J., COHEN and JACOBUS, JJ., concur.

Kaye could have, but did not file a motion during the pendency of the appeal pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). 2

1

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