IN THE
TENTH COURT OF APPEALS
No. 10-09-00030-CR
IN RE MICHAEL FLORENCE
Original Proceeding
MEMORANDUM OPINION
Michael Florence has filed a mandamus application challenging the denial of his
motion for judgment nunc pro tunc in which he contends the judgment does not give
him proper credit for the time he served before trial. We will deny the relief requested.
Florence was convicted of aggravated sexual assault of a child in Travis County
in 1991 and sentenced to thirty years’ imprisonment. He committed the offense of
possession of a deadly weapon in a penal institution on July 6, 1992. He was indicted
by a Madison County grand jury for this offense on March 29, 1993. Pursuant to a plea
bargain, he was convicted of this offense and sentenced to ten years’ imprisonment on
July 12, 1993. The trial court gave Florence credit for time served beginning on March
29, 1993, the date of the indictment.1
Florence filed a motion for judgment nunc pro tunc in November 2008 alleging
that the judgment should be corrected to give him credit for time served beginning on
the date of the offense rather than the date of the indictment. Respondent denied this
motion.
The proper procedure for correcting an erroneous recital in a judgment
concerning pre-sentence time credit is to file a motion for judgment nunc pro tunc with
the trial court. Ex parte Ybarra, 149 S.W.3d 147, 148-49 (Tex. Crim. App. 2004) (per
curiam); In re Gomez, 268 S.W.3d 262, 264 & n.1 (Tex. App.—Austin 2008, orig.
proceeding). If the court fails to rule on the motion or denies it, then the defendant can
seek appellate review by filing a mandamus petition with the court of appeals. Gomez,
268 S.W.3d at 264; Castor v. State, 205 S.W.3d 666, 667 (Tex. App.—Waco 2006, no pet.);
see Ex parte Forooghi, 185 S.W.3d 498, 499 (Tex. Crim. App. 2006) (Johnson, J., concurring
statement); Ybarra, 149 S.W.3d at 149. Thus, Florence has employed the appropriate
procedural vehicle to bring his complaint before this Court.
When an inmate like Florence commits an offense while imprisoned, credit for
time served on the new offense will begin to run when a detainer or hold is lodged
against the inmate for the new offense. Ex parte Bynum, 772 S.W.2d 113, 114 (Tex. Crim.
1
This factual background is derived largely from information contained in Florence’s pleadings.
We note, however, that Florence’s mandamus application is defective because it does not include: (1) the
certification required by Rule of Appellate Procedure 52.3(j); or (2) certified or sworn copies of the
supporting documents as required by Rule 52.3(k). See TEX. R. APP. P. 52.3(j), (k)(1)(A). Nevertheless, we
will apply Rule of Appellate Procedure 2 and disregard these deficiencies because Florence cannot
prevail on the merits of his claim based on the information provided. Id. 2.
In re Florence Page 2
App. 1989) (per curiam); accord Ex parte Rodriguez, 195 S.W.3d 700, 703 (Tex. Crim. App.
2006).
Here, Florence has favored this Court with a copy of his reply to the State’s
response to his motion for judgment nunc pro tunc. According to Florence, the State
contends that he is not entitled to additional time credit because a detainer was never
lodged against him. Florence does not dispute this contention, stating, “The issue here
is not about a detainer.” We disagree. According to Bynum, the issue is when a
detainer or other hold was lodged against Florence. Id.
From the limited record provided, no detainer was lodged against Florence prior
to his indictment. Therefore, he is not entitled to credit for time served between the
date of the offense and the date of the indictment. For this reason, Respondent did not
err by denying Florence’s motion for judgment nunc pro tunc.
The mandamus application is denied.
FELIPE REYNA
Justice
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
Application denied
Opinion delivered and filed April 8, 2009
Do not publish
[OT06]
In re Florence Page 3