ROBERT T. NOWELL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Robert Nowell appeals his probation revocation sentence, challenging the trial court's denial of jail-time credit for days spent in Polk County jail and at Reality House, an inpatient drug treatment program. The Florida District Court of Appeal affirmed, holding that Nowell failed to properly raise the jail-time credit issue on appeal and that his stay at Reality House was neither coercive nor custodial.
The court affirmed the denial of jail-time credit on both grounds. First, Nowell forfeited the Polk County jail-time issue by failing to raise it at sentencing or via a timely rule 3.800(b) motion. Second, Nowell was not entitled to jail-time credit for Reality House because his stay was voluntary, not coercive or custodial—he had contracted with the court for probation with conditions and chose to violate them.
[1] A sentencing error may not be raised on appeal unless it was first brought to the attention of the lower tribunal at the time sentence is imposed or by a timely motion.
[2] A defendant is not entitled to jail-time credit for time spent in a voluntary drug rehabilitation program, even if the program involves a structured environment.
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Join FLexlaw to unlock all legal intelligence“The test is whether the stay in the facility constitutes a coercive deprivation of liberty.”
Establishes the legal standard for determining jail-time credit eligibility in functional equivalency cases.
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Join FLexlaw to unlock all legal intelligenceNowell was arrested on a Volusia County warrant and held in Polk County Jail for five days. Originally charged with cocaine possession, he requested p…
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THOMPSON, J.
Robert T. Nowell, pro se, appeals the judgment and sentence rendered after revocation of his probation. He argues that he was not given proper credit for time he served in the Polk County jail awaiting return to Volusia County after his arrest, or for time spent in Reality House. Reality House is an inpatient drug treatment program which Nowell contends was the functional equivalent of jail. We affirm.
Nowell first alleges that he is entitled to five days credit for time he spent in the Polk County Jail after he was arrested on a Volusia County warrant. Although the "record does show, that he was in the Polk County Jail, this is the first time that Nowell has complained about credit for time served. Florida Rule of Appellate Procedure 9.140(d) provides that a sentencing error may not be raised on appeal unless it was first brought to the attention of the lower tribunal at the time sentence is imposed, or by a motion pursuant to Florida Rule Criminal Procedure 3.800(b), which has a deadline of thirty days after rendition of the sentence. Nowell did not raise the issue of credit for time served at the time of sentencing, nor did he file a 3.800(b) motion.
Second, Nowell contends that he should receive jail-time credit for the 89 days he spent at Reality House, a drug treatment program, because it was the functional equivalent of county jail. In Tab-Mason v. State, 515 So. 2d 738 (Fla.1987), the Florida Supreme Court held that to be held against one’s will in a state mental institution for incompetence is the functional equivalent of being held in the county jail. Id. at 740. The court reasoned that if a defendant can be given jail-time credit for time spent in a hospital or other health-related facilities for physical injuries, then a defendant should be given jail-time credit for time spent in a mental institution. Id. The test is whether the stay in the facility constitutes a coercive deprivation of liberty. Id. at 739. The court specifically rejected giving jail-time credit for time spent in a live-in drug rehabilitation program. Id. at 739 (citing Pennington v. State, 398 So. 2d 815, 817 (Fla.1981)). The court noted that probationary rehabilitation, where the defendant and the court contract for the conditions of probation, is different from coercively depriving a defendant of his liberty.
The record in this case refutes Nowell’s argument that his stay in Reality House was coercive. Nowell, initially arrested for possession of cocaine, requested placement in a drug treatment program to deal with his substance abuse. Instead of being adjudicated and sentenced to 180 days in the county jail, Nowell agreed to three years probation with the first six months in an inpatient drug treatment program. The trial judge told Nowell, “You mess up, you get axed.” Nowell replied that he needed “the regimented lifestyle to start me off.” Nowell then agreed to waive his guideline sentence, and the trial court told him that if he violated the conditions of his probation, he could be sentenced to five years in the Department of Corrections. During the last part of his stay at Reality House, Nowell requested and obtained a pass to travel to a job interview. He was not accompanied by staff or by law enforcement. His purpose was to obtain a job so he could complete the final phase of his treatment program, but he failed to return to the facility. Nowell contracted with the court to participate in a drug treatment program but failed to follow the conditions of the program. Because his stay at Reality House was neither coercive nor , custodial, he is not eligible to receive jail-time credit. See Pennington at 817. We affirm the sentence in its entirety.
AFFIRMED.
COBB and HARRIS, JJ., concur.
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Toney v. State, 817 So. 2d 924 (Fla. 2d DCA 2002)…dit for time spent in a probationary residential treatment program: “We conclude Williams’ ‘confinement’ at the residential facility was no more restrictive than the confinement of a person placed on community control ....” See also Nowell v. State, 742 So. 2d 345 (Fla. 5th DCA 1999) (finding that the defendant’s stay at an inpatient drug treatment program while on probation was neither coercive nor custodial). The Williams case, however, cited Hill v. State, 754 So. 2d 788 (Fla. 2d DCA 2000), and left an ope…
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Hamilton v. State, 898 So. 2d 172 (Fla. 4th DCA 2005)…ird district has held this consistently. Smith v. State, 619 So. 2d 994 (Fla. 3d DCA 1993); Taylor v. State, 726 So. 2d 348 (Fla. 3d DCA 1999). The fifth district also appears to have correctly applied the supreme court’s precedent. Nowell v. State, 742 So. 2d 345 (Fla. 5th DCA 1999). But see Columbro v. State, 777 So. 2d 1208 (Fla. 5th DCA 2001) (requiring credit where defendant was under court order to be in a drug program before sentencing). Had Hamilton’s motion for credit been denied on the merits, I wo…
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Catrica Clifton v. State, 931 So. 2d 996 (Fla. 5th DCA 2006)…PER CURIAM. AFFIRMED. See Hill v. State, 813 So. 2d 274 (Fla. 5th DCA 2002), Nowell v. State, 742 So. 2d 345 (Fla. 5th DCA 1999). THOMPSON, MONACO and TORPY, JJ., concur.…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Tal-Mason v. State, 515 So. 2d 738 (Fla. 1987)
- Doretha Pennington v. State, 398 So. 2d 815 (Fla. 1981)