PAUL ELTON TURNER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Turner appeals the denial of his motion to correct sentence, challenging whether time spent at a probation restitution center should be credited against his prison sentence. The First District Court of Appeal affirmed, holding that residence at a restitution center does not constitute incarceration under Florida law and therefore credit is not mandated.
Time spent at a probation restitution center does not constitute incarceration within the meaning of Florida law, and therefore a defendant is not entitled to credit for such time against a prison sentence imposed upon probation revocation.
[1] A defendant is not entitled to credit for time spent in a probation restitution center when the restrictions imposed do not rise to the level of "incarceration" as define…
[2] The purpose of a probation restitution center, which allows a probationer freedom during the day, is distinct from confinement in a penal institution.
Previewing 2 of 4 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“Credit for punishment already exacted is mandated by the Fifth Amendment to the U. S. Constitution and by statute.”
Establishes the general principle that credit for time served is constitutionally and statutorily required
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Join FLexlaw to unlock all legal intelligenceTurner was on probation with adjudication withheld, with a condition requiring him to reside at the Men's Probationers Restitution Residence Center in…
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OWEN, WILLIAM C., Jr. (Retired), Associate Judge.
Appellant was on probation with adjudication withheld, a condition of probation being that he reside at the Men’s Probationers Restitution Residence Center in Jacksonville. Probation was revoked for viola tion, after which Appellant was sentenced to three years in prison without credit for the time spent by Appellant in the restitution center. Appellant seeks review of the order denying his motion to correct sentence in this and another respect.
The court, finding that Appellant was free to leave the center every morning and to remain at liberty until he returned each night (after which he was required to be at the center during the night except by special authorization), held that this did not amount to Appellant being incarcerated, as the word “incarcerated” is defined in Sims v. State, 369 So. 2d 431 (Fla. 2nd DCA 1979). While we feel that the restrictions placed upon Appellant would marginally meet the Sims definition of being “incarcerated”, we decline to follow the Sims case (and similar decisions by the Second District Court of Appeal 1) but rather prefer to align ourselves with the Fourth District Court of Appeal on this point as reflected by its decisions in Pennington v. State, 4th DCA, Case No. 78-1302, Opinion filed January 16, 1980,2 and Levin v. State, 348 So. 2d 1189 (Fla. 4th DCA 1977).
Credit for punishment already exacted is mandated by the Fifth Amendment to the U. S. Constitution3 and by statute.4 But as Justice England pointed out in Dorfman v. State, 351 So. 2d 954 (Fla.1977), there is an obvious difference between confinement in a prison as part of a criminal sentence and a period of treatment in a mental hospital for the purpose of helping the individual to return to society. Paraphrased, there is clearly an obvious difference between confinement in prison (or in the county jail before sentence) and the limited restrictions placed on one at the probation restitution center. And as Judge Downey pointed out in Pennington v. State, supra, the statute mandating credit “refers only to ‘credit for all of the time he spent in the county jail before sentence.’ ”
The other error asserted by Appellant is also without merit, and the order is, therefore,
AFFIRMED.
LARRY G. SMITH, and THOMPSON, JJ., concur. . Singleton v. State, 373 So. 2d 713 (Fla. 2nd DCA 1979); Barron v. State, 369 So. 2d 669 (Fla. 2nd DCA 1979); Graham v. State, 366 So. 2d 498 (Fla. 2nd DCA 1979); Johnson v. State, 334 So. 2d 334 (Fla. 2nd DCA 1979).
. On August 27, 1980, the Supreme Court entered an order accepting jurisdiction of this case and dispensing with oral argument, Case No. 58,648.
. See North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).
. Section 921.161, Florida Statutes (1979).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- North Carolina v. Pearce, 395 U.S. 711 (U.S. 1969)
- Dorfman v. State, 351 So. 2d 954 (Fla. 1977)
- Sims v. State, 369 So. 2d 431 (Fla. 2d DCA 1979)
- Eli Edward Johnson v. State, 334 So. 2d 334 (Fla. 2d DCA 1976)
- Levin v. State, 348 So. 2d 1189 (Fla. 4th DCA 1977)
- The City OF Vero Beach v. Morganti S., Inc., 366 So. 2d 498 (Fla. 4th DCA 1979)
- Ormanian v. State, 366 So. 2d 498 (Fla. 2d DCA 1979)
- Singleton v. State, 373 So. 2d 713 (Fla. 2d DCA 1979)
- Barron v. State, 369 So. 2d 669 (Fla. 2d DCA 1979)