KENNETH RAYMOND SIMS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Kenneth Sims appealed the summary denial of his Rule 3.850 motion seeking credit for time served during probation revocation and incarceration. The court reversed and remanded, holding that while credit is not available for time on probation itself, credit must be awarded for any time a defendant was incarcerated as a condition of probation, including potential confinement at Florida Turning Point Ranch.
Under Florida law, a defendant is not entitled to credit for time spent on probation itself, but a court must award credit for any time a defendant is incarcerated as a condition of probation. The case is remanded for an evidentiary hearing to determine whether Sims was incarcerated at the ranch and thus entitled to credit time.
[1] A defendant is entitled to credit for time incarcerated as a condition of probation.
[2] Failure to award credit time is a cognizable claim for relief under Florida Rule of Criminal Procedure 3.850.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“a court is required to award credit for any time during which a defendant is incarcerated as a condition of probation”
Establishes the key legal principle that distinguishes incarceration during probation (which qualifies for credit) from probation time itself (which does not).
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Join FLexlaw to unlock all legal intelligenceSims pled guilty to possession of narcotics paraphernalia and possession of barbiturates and was placed on probation for five years. He successfully c…
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DANAHY, Judge.
This is an appeal from the summary denial of a Florida Rule of Criminal Procedure 3.850 motion. We have reviewed appellant’s allegations and find that two do not state grounds for relief. However, we cannot say the same thing about appellant’s remaining allegations which concern the court’s failure to award credit time.1 Hence we reverse.
In his motion, appellant alleged that after he pled guilty to charges of possession of narcotics paraphernalia and possession of barbiturates, the court placed him on probation for a term of five years. He further alleged that he successfully completed three and one-half years of that probation, including a one-year stay at the Florida Turning Point Ranch. Thereafter, the court revoked probation and sentenced him to two consecutive five-year prison terms without giving him credit for time spent on probation. Appellant requested that the court correct his sentence by awarding credit. This the court refused to do.
While we agree with the trial court that under Section 948.06, Florida Statutes (1977), a defendant is not entitled to credit for time spent on probation, we must also note that a court is required to award credit for any time during which a defendant is incarcerated as a condition of probation. State v. Jones, 327 So. 2d 18 (Fla.1976). Hence if appellant’s allegations are true and if confinement in the Florida Turning Point Ranch amounts to incarceration, appellant is entitled to credit for the year he spent at the ranch.
Accordingly, we remand this case for an evidentiary hearing at which the trial court must test the truth of appellant’s allegations and make a factual determination as to whether appellant was incarcerated2 and was therefore entitled to credit time.
GRIMES, C. J., and BOARDMAN, J., concur. . The failure to award credit time is a matter which may be raised by way of a Rule 3.850 motion. Wright v. State, 355 So. 2d 870 (Fla. 2d DCA 1978).
. At the least we think that a defendant is incarcerated when he is confined in a governmental institution and his liberty is circumscribed to the extent that he is not free to leave without official permission.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (12 total)
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Whitehead v. State, 677 So. 2d 40 (Fla. 4th DCA 1996)…nd for an evidentiary hearing on the credit question. In being sentenced on revocation of probation, a probationer is entitled to credit for time served in county jail as a condition of the probation. § 921.161(1), Fla.Stat. (1995); Sims v. State, 369 So. 2d 431 (Fla. 2d DCA 1979), cert. denied, 383 So. 2d 1202 (Fla.1980). The Florida Supreme Court has determined that the term “county jail” in the statute is not limited to. an institution formally designated as a “jail”; a detainee must be credited with any…
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Roesch v. State, 446 So. 2d 269 (Fla. 2d DCA 1984)…e record it appeared appellant was entitled to a total of 164 days credit. Florida law requires that a court must give a defendant credit for any jail time served as a condition of probation. State v. Jones, 327 So. 2d 18 (Fla.1976); Sims v. State, 369 So. 2d 431 (Fla. 2d DCA 1979). Hence, if appellant’s allegations are true, he is entitled to credit for at least 171 days spent in jail (time served) as a condition of his probation. Appellant is also entitled to all time served on warrants charging violation…
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Crosby v. State, 487 So. 2d 416 (Fla. 2d DCA 1986)…(Fla.1976); Kirkman v. Wainwright, 465 So. 2d 1262 (Fla. 5th DCA 1985); Roesch v. State, 446 So. 2d 269 (Fla. 2d DCA 1984); Dickerson v. State, 427 So. 2d 205 (Fla. 2d DCA 1983); Hernandez v. State, 396 So. 2d 809 (Fla. 5th DCA 1981); Sims v. State, 369 So. 2d 431 (Fla. 2d DCA 1979). Accordingly, we reverse the sentences as construed and remand with directions to [*419] correct appellant’s sentences in accordance with what we have said. SCHOONOVER and FRANK, JJ., concur.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Jones, 327 So. 2d 18 (Fla. 1976)
- Wright v. State, 355 So. 2d 870 (Fla. 2d DCA 1978)