IVAN SILVERSTEIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Silverstein appealed a trial court's denial of his Rule 3.800 motion to correct his sentence for a probation violation. The appellate court held that when a defendant violates probation on a split sentence, he is entitled to credit for time served on the original incarceration unless he clearly and specifically waives that right on the record.
A defendant who violates probation on a split sentence is entitled to credit for time previously served on the original incarceration unless he voluntarily and specifically waives that right. A mere failure to object to a sentence that omits credit for time served does not constitute a valid waiver; the waiver must be clearly shown on the record.
[1] A defendant is entitled to credit for time served in prison before being placed on probation when the probationary portion of a split sentence is violated.
[2] A waiver of credit for time served on the incarcerative portion of a split sentence must be clearly shown on the record.
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Join FLexlaw to unlock all legal intelligence“Where a defendant violates the probationary portion of a split sentence, he is entitled to receive credit for the time served in prison before being placed on probation.”
Establishes the core entitlement to credit for time served when probation is violated on a split sentence.
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Join FLexlaw to unlock all legal intelligenceSilverstein was convicted of third-degree grand theft in 1992 and received a split sentence of 30 months incarceration followed by 2 years probation. …
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STEVENSON, Judge.
This is an appeal from an order denying appellant’s rule 3.800 motion to correct sentence after a hearing before the trial court. Appellant argues — and we agree— that the trial court erred in failing to correct his sentence to include credit for time served in prison before he was placed on probation.
Appellant was originally convicted of third degree grand theft in 1992. He was given a split sentence of thirty months incarceration followed by two years’ probation. Appellant was subsequently charged with a violation of the probationary portion of his sentence. Appellant admitted the violation, and was sentenced, pursuant to a plea agreement, to 364 days jail time with credit for the 127 days he spent in jail awaiting disposition of his violation of probation case. The trial court found that appellant waived any right to credit for time served prior to being placed on probation because the plea as negotiated did not specifically provide for it. We disagree and reverse.
Where a defendant violates the probationary portion of a split sentence, he is entitled to receive credit for the time served in prison before being placed on probation. Lavrich v. State, 633 So. 2d 1177 (Fla. 4th DCA 1994). The state correctly argues that a defendant can waive credit for time served as part of a plea agreement. See Epler v. Judges of the Thirteenth Judicial Circuit, 308 So. 2d 134 (Fla. 2d DCA 1975) and Prangler v. State, 470 So. 2d 105 (Fla. 2d DCA 1985). However, in those eases, the waivers were clearly shown on the record.
Where a defendant’s waiver of credit for time served on the incarcerative portion of a split sentence is not clearly shown on the record, it will not be presumed. We agree with Van Ellis v. State, 455 So. 2d 1065 (Fla. 1st DCA), rev. dismissed, 459 So. 2d 1041 (Fla.1984), where the First District declined to find such a waiver where the defendant did not “voluntarily and specifically” relinquish his right to time served. The court found that the mere failure to object to the sentence that did not provide for credit did not amount to a waiver. Similarly, here, defense counsel brought it to the sentencing court’s attention that appellant had already served time on the original sentence, but did not object when the sentence imposed upon revocation did not provide for credit for that time.
Because the state failed to show that appellant specifically waived credit for time previously served on this split sentence, we reverse. Accordingly, we remand this cause to the trial court to award the total amount of time appellant previously spent in custody on the underlying charges in this case.
REVERSED AND REMANDED.
GUNTHER, J., concurs.
STONE, J., dissents with opinion.
STONE, Judge,
dissenting.
I would affirm. In my judgment, the record adequately reflects a waiver.
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Cited By (29 total)
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Johnson v. State, 60 So. 3d 1045 (Fla. 2011)…4th DCA 2010); Rudicil v. State, 31 So. 3d 328 (Fla. 4th DCA 2010); Reddix v. State, 15 So. 3d 614 (Fla. 3d DCA 2009); Velasquez v. State, 11 So. 3d 979 (Fla. 1st DCA 2009); Giggetts v. State, 5 So. 3d 756 (Fla. 1st DCA 2009); Silverstein v. State, 654 So. 2d 1040 (Fla. 4th DCA 1995). . Florida Rule of Appellate Procedure 9.141(b)(2)(D), which establishes appellate procedures for reviewing summary denials of motions for postconviction relief filed under criminal rules 3.800(a), 3.850, or 3.853, does not alte…
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Hines v. State, 906 So. 2d 1137 (Fla. 3d DCA 2005)…he time he served in a county jail before his sentence was imposed, § 921.161, Fla. Stat. (2005); State v. Mancino, 714 So. 2d 429 (Fla.1998), a defendant can waive credit'for the time he has served as part of a plea agreement. Silverstein v. State, 654 So. 2d 1040 (Fla. 4th DCA 1995). Although a defendant can waive credit for time served as a part of a plea agreement, such waiver must be clearly shown on the record. Cozza v. State, 756 So. 2d 272 (Fla. 3d DCA 2000); Ryan v. State, 837 So. 2d 1075 (Fla. 3d DCA…
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Davis v. State, 968 So. 2d 1051 (Fla. 5th DCA 2007)…hat Appellant knowingly and voluntarily waived jail credit to which he would otherwise be legally entitled. See Murphy v. State, 930 So. 2d 794, 796 (Fla. 1st DCA 2006) (finding waiver of jail credit must be clear and knowing); Silverstein v. State, 654 So. 2d 1040, 1041 (Fla. 4th DCA 1995) (holding waiver of jail time credit must be specific, voluntary, and clearly shown on the record). In its response, the State argues that Reed v. State, 810 So. 2d 1025 (Fla. 2d DCA 2002), supports the trial court’s conclu…
Previewing 3 of 29 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Prangler v. State, 470 So. 2d 105 (Fla. 2d DCA 1985)
- Epler v. Judges OF the Thirteenth Judicial Circuit, 308 So. 2d 134 (Fla. 2d DCA 1975)
- van Ellis v. State, 455 So. 2d 1065 (Fla. 1st DCA 1984)
- Lavrich v. State, 633 So. 2d 1177 (Fla. 4th DCA 1994)