                                      IN THE DISTRICT COURT OF APPEAL
                                      FIRST DISTRICT, STATE OF FLORIDA

TACOBY CHARLES ROSS,                  NOT FINAL UNTIL TIME EXPIRES TO
                                      FILE MOTION FOR REHEARING AND
      Appellant,                      DISPOSITION THEREOF IF FILED

v.                                    CASE NO. 1D16-4050

STATE OF FLORIDA,

     Appellee.
____________________________/

Opinion filed July 20, 2017.

An appeal from the Circuit Court for Escambia County.
John L. Miller, Judge.

Andy Thomas, Public Defender, Joel Arnold, Assistant Public Defender,
Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, Daniel R. Krumbholz and Thomas H. Duffy,
Assistant Attorneys General, Tallahassee, for Appellee.




PER CURIAM.

      Appellant appeals the trial court’s denial of his Florida Rule of Criminal

Procedure 3.800(b)(2) motion to correct a sentencing error. The trial court stated

that it denied Appellant’s motion, because it was required to be filed under Florida

Rule of Criminal Procedure 3.801. The issue before us is whether Appellant can
seek credit for time served via Florida Rule of Criminal Procedure 3.800(b)(2)

during the pendency of a direct appeal.

       “If an appeal is pending, a defendant or the state may file in the trial court a

motion to correct a sentencing error.” Fla. R. Crim. P. 3.800(b)(2). A motion to

correct a final sentence may be filed under Florida Rule of Criminal Procedure

3.801. Fla. R. Crim. P. 3.801(a). Appellant filed his motion during the pendency

of his appeal, not after his sentence became final. In the Court Commentary to rule

3.801, the language of the 2013 adoption states that “all jail credit issues must be

handled pursuant to this rule”; however, the 2016 Amendment to rule 3.801

clarifies that “rule 3.801 applies to final sentences.” Id. The State concedes error

on this issue.   We reverse and remand for the trial court’s consideration of

Appellant’s motion on the merits.

      REVERSED AND REMANDED.

B.L. THOMAS, C.J., LEWIS and ROWE, JJ., CONCUR.




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