BERNARD TOMIUK, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a defendant is entitled to credit for jail time served prior to the original sentence, even when resentenced for violating probation or community control.
[1] A defendant is entitled to credit for all time spent in county jail before sentencing, even when resentenced following a violation of community control.
[2] A sentencing order must explicitly award credit for all time served in county jail prior to the imposition of the original sentence.
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Join FLexlaw to unlock all legal intelligenceThe defendant was originally sentenced and received credit for jail time served. After violating community control, he was resentenced to a longer pri…
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ANTOON, Judge.
The defendant appeals the summary denial of his 3.800 motion to correct an illegal sentence, alleging that his sentence was illegal because he did not receive credit for the time he served in the county jail. We agree that the sentence was illegal and, therefore, reverse.
On June 8, 1993, the defendant was sentenced to a term of three years in prison followed by two years of community control for grand theft. The sentencing court awarded defendant 262 days of credit for the time he spent in the county jail awaiting trial and sentencing.
After being released from prison, the defendant violated his community control. As a result of this violation, on March 11, 1994, the defendant’s community control was revoked, and the defendant was sentenced to five years in prison. The sentencing order included a provision that the defendant must receive a credit for “prev. DOC time and 25 days,” but the order did not provide credit for the original 262 days which the defendant had served in the county jail.
The defendant thereafter filed a 3.800 motion seeking credit for the 262 days. The motion was summarily denied by the trial court. Attached to the order were copies of documents relevant to sentencing, but none of these documents support the trial court’s ruling denying the defendant’s request for jail time credit.
Section 921.161(1), Florida Statutes (1993), provides:
A sentence of imprisonment shall not begin to run before the date it is imposed, but the court imposing a sentence shall allow a defendant credit for all of the time spent in the county jail before sentencing.
This language establishes that jail time credit is not forfeited when a defendant is resen-tenced as a result of a violation of probation or community control and, therefore, the defendant is entitled to receive credit for the 262 days he served prior to the imposition of the original sentence. See Bowers v. State, 645 So. 2d 1108 (Fla.1st DCA 1994).
REVERSED and REMANDED to the trial court with instructions to award the defendant credit for 262 days time served.
HARRIS and GRIFFIN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Waithe v. State, 941 So. 2d 534 (Fla. 4th DCA 2006)…that the defendant waived his or her entitlement to such credit.” Briggs v. State, 929 So. 2d 1151, 1153 (Fla. 5th DCA 2006). The credit for time served includes any portion of jail time served for prior violations of probation. See Tomiuk v. State, 663 So. 2d 681 (Fla. 5th DCA 1995) (“jail time credit is not forfeited when a defendant is resentenced as a result of a violation of probation or community control”). We reverse and remand for re-sentencing. On remand, the trial court shall conduct a sentencing…
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Shaban Mohammad v. State, 138 So. 3d 1174 (Fla. 3d DCA 2014)…-sentenced to prison after violation of the probationary portion of his split sentence is entitled to credit for time actually served on the prison portion of his split sentence prior to the commencement of the probationary term.”); Tomiuk v. State, 663 So. 2d 681 (Fla. 5th DCA 1995) (“[J]ail time credit is not forfeited when a defendant is resentenced as a result of a violation of probation or community control.”); Bowers v. State, 645 So. 2d 1108 (Fla. 1st DCA 1994) (“We reverse and remand for correction of…
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Barbesco v. State, 264 So. 3d 338 (Fla. 1st DCA 2019)…olates the prohibition against double jeopardy.” (quoting Linton v. State, 702 So. 2d 236, 236-37 (Fla. 2d DCA 1997)). Further, jail credit may not be withdrawn upon a resentencing as a result of a probation violation. See Tomiuk v. State, 663 So. 2d 681, 681 (Fla. 5th DCA 1995) (“[Section 3 921.161(1)] establishes that jail time credit is not forfeited when a defendant is resentenced as a result of a violation of probation or community control and, therefore, the defendant is entitled to re…
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- Bowers v. State, 645 So. 2d 1108 (Fla. 1st DCA 1994)