McMillion v. State

KAHN, J. Fred McMillion appeals an amended judgment and sentence entered on remand pursuant to this court’s opinion in McMillion v. State, 729 So.2d 455 (Fla. 1st DCA 1999). McMillion argues for the first time on appeal that he did not receive the appropriate amount of credit for time he served in prison prior to resentencing even though, during the resentencing hearing, the trial court indicated that he would receive credit for the time that he had served through that day. The State responds that this issue was not preserved in the trial court by either a contemporaneous objection or by motion pursuant to Rule 3.800(b); therefore, this appeal should be dismissed without prejudice to McMillion raising any claims he may have in the trial court. Although the parties have failed to point this out, a document included in the record indicates that McMillion received the proper credit. Specifically, the “Resentence Judgment” orders that “the defendant be allowed credit for all time previously served on this count in the Department of Corrections prior to resentencing.” Ac [727] cordingly, we AFFIRM the judgment and sentence on appeal. BENTON, J. and SHIVERS, DOUGLASS B., Senior Judge, CONCUR.