LOUIS C. BESHARA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a defendant is entitled to credit for time spent in county jail prior to sentencing unless such credit is specifically waived, and that the Department of Corrections, not the trial court, determines eligibility for gain time.
Louis C. Beshara moved for credit for approximately 20 days spent in county jail prior to sentencing. The sentencing order explicitly stated he was no…
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PER CURIAM.
Louis C. Beshara filed a rule 3.800(a) motion claiming that he is entitled to approximately 20 days credit for time spent in the county jail prior to sentencing. The trial court denied the motion. We assume the denial was based on the following language in the sentencing order and reverse the order that denied relief:
The Defendant shall not be entitled to prior jail credit and shall not be eligible for work release or house arrest. The Defendant is to serve this incarcerative portion of his probation DAY FOR DAY, without entitlement to gain time.
Section 921.161(1), Florida Statutes (1997), requires that defendants receive credit for all of the time spent in the county jail before sentence. Absent a waiver of such credit, the failure to award jail credit for time served before sentencing constitutes an illegal sentence. See State v. Mancino, 714 So. 2d 429 (Fla.1998); Daily v. State, 1999 WL 212859, — So. 2d - (Fla. 4th DCA April 7, 1999). This court has not been directed to any such waiver in this case. See Silverstein v. State, 654 So. 2d 1040, 1041 (Fla. 4th DCA 1995) (waiver of jail time credit must be specific, voluntary, and clearly shown on the record).
On remand the trial court is directed to allow credit on the sentence for the 20 days appellant spent in jail before sentencing. Additionally, the court on remand shall delete the portion of the order precluding appellant from earning gain time as such is the Department of Correction’s domain. See Mercade v. State, 698 So. 2d 1313 (Fla. 2d DCA 1997).
No motion for rehearing will be entertained by this court. The clerk is directed to issue the mandate simultaneously with this opinion.
KLEIN, SHAHOOD and HAZOURI, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Haines v. State, 851 So. 2d 831 (Fla. 1st DCA 2003)…ee Griffin v. State, 838 So. 2d 1218, 1220 (Fla. 3d DCA 2003); State v. Richardson, 766 So. 2d 1111, 1112 (Fla. 3d DCA 2000). However, in the absence of such a waiver, the failure to award credit results in an illegal sentence. See Beshara v. State, 736 So. 2d 30, 31 (Fla. 4th DCA 1999). Such a waiver will not be presumed. See Robinson v. State, 827 So. 2d 345, 345 (Fla. 4th DCA 2002); Reed v. State, 810 So. 2d 1025, 1026-27 (Fla. 2d DCA 2002); Wells v. State, 751 So. 2d 703 (Fla. 1st DCA 2000). Accordingly,…
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Hagan v. State, 25 So. 3d 639 (Fla. 1st DCA 2009)…ee Griffin v. State, 838 So. 2d 1218, 1220 (Fla. 3d DCA 2003); State v. Richardson, 766 So. 2d 1111, 1112 (Fla. 3d DCA 2000). However, in the absence of such a waiver, the failure to award credit results in an illegal sentence. See Beshara v. State, 736 So. 2d 30, 31 (Fla. 4th DCA 1999). Such a waiver will not be presumed. Haines v. State, 851 So. 2d 831, 832 (Fla. 1st DCA 2003). Because the record demonstrates no waiver here, the failure to award credit for all the time appellant has spent in jail resulted…
Authorities Cited
- State v. Mancino, 714 So. 2d 429 (Fla. 1998)
- Silverstein v. State, 654 So. 2d 1040 (Fla. 4th DCA 1995)
- Rafial A. Mercade v. State, 698 So. 2d 1313 (Fla. 2d DCA 1997)