MICHAEL WAYNE WELLS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Michael Wayne Wells appealed the denial of his rule 3.800(a) motion seeking credit for time served on the incarcerative portion of his original sentence against a sentence imposed after probation revocation. The Florida First District Court of Appeal reversed, holding that although a defendant may waive credit for time served through a plea agreement, such waiver must be clearly shown on the record.
The court held that although a defendant may waive credit for time served as part of a plea agreement, such waiver must be clearly shown on the record and will not be presumed. Where the plea form is silent regarding credit for time served on the original sentence, the trial court must either obtain documentation evidencing an express waiver or award the credit for time previously served.
[1] A motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a) is an appropriate vehicle to challenge a failure to award credit for time served on a criminal sent…
[2] A defendant is entitled to credit for time served on the incarcerative portion of a sentence prior to being placed on probation, even after violating that probation.
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Join FLexlaw to unlock all legal intelligence“A defendant who violates the probationary portion of a split sentence is entitled to receive credit for time served on the incarcerative portion of the sentence before being placed on probation.”
Establishes the core entitlement to time credit upon probation violation
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Join FLexlaw to unlock all legal intelligenceWells received a split sentence with an incarcerative portion followed by probation. After violating the probationary portion, he entered into a plea …
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JOANOS, J.
Appellant appeals the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Appellant sought credit for time served on the incar-cerative portion of his original sentence to be credited against the sentence imposed after he violated the probationary portion of his original sentence. The trial court denied the requested relief, because the court determined that the sentence imposed after probation was revoked resulted from a plea in which the sentence and the credit for time served were negotiated. We reverse and remand for further proceedings.
Failure to award credit for time served on a criminal sentence may be raised in a rule 3.800(a) motion. See State v. Mancino, 714 So. 2d 429, 433 (Fla.1998); Diggs v. State, 727 So. 2d 346, 346 (Fla. 1st DCA 1999). In Mancino, the court explained that—
The entitlement to time served is not a disputed issue of fact in the sense that an evidentiary hearing is needed to determine whether there is such an entitlement. Hence, if the record reflects that a defendant has served time prior to sentencing on the charge for which he was tried and convicted, and a sentence that does not properly credit the defendant with time served, then that sentence may be challenged under rule 3.800 ...
See id,., 714 So. 2d at 433.
A defendant who violates the probationary portion of a split sentence is entitled to receive credit for time served on the incarcerative portion of the sentence before being placed on probation. See Diggs, 727 So. 2d at 347; Silverstein v. State, 654 So. 2d 1040, 1041 (Fla. 4th DCA 1995). Although a defendant can waive credit for time served as part of a plea agreement, such waiver must be clearly shown on the record. “Where a defendant’s waiver of credit for time served is not clearly shown on the record, it will not be presumed.” See id. at 1041.
In this case, the trial court denied appellant’s motion for credit for time served on the incarcerative portion of his split sentence, because the court determined the sentence and credit for time served in connection with appellant’s violation of probation resulted from a negotiation. The order denying appellant’s motion states in pertinent part:
The Court has reviewed the pleading and the file and has determined that the sentence and the credit for time served were negotiated. A plea of guilty form was signed in Open Court on April 22, 1999.
The attached plea form supports the trial court’s ruling with respect to the length of sentence to be imposed for violation of the probationary portion of appellant’s original sentence, and for the time spent in jail awaiting disposition of the violation of probation case. However, the negotiated plea and sentence form is silent with respect to credit for time served on the original sentence. Since the form fails to establish that appellant waived entitlement to credit for time served on the original sentence, we must reverse the order, and remand for attachment of documentation evidencing appellant’s waiver of entitlement to credit for time previously served in connection with this conviction, or for an award of such credit. See Moore v. State, 741 So. 2d 577, 578 (Fla. 5th DCA 1999).
Accordingly, the trial court’s order denying appellant’s motion to correct sentence is reversed and remanded for proceedings consistent with this opinion.
ERVIN, J., and SMITH, LARRY G., Senior Judge, CONCUR.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (12 total)
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Fulcher v. State, 875 So. 2d 647 (Fla. 3d DCA 2004)…t for time served in prison on the original sentence, especially in the absence of any documentation establishing a waiver of credit during a negotiated plea for the probation violation See Waters v. State, 662 So. 2d 332 (Fla.1995); Wells v. State, 751 So. 2d 703 (Fla. 1st DCA 2000). The record before us contains no documentation that Fulcher waived his entitlement to credit for prison time served. However, for Fulcher to receive the “windfall” of immediate release by application of five year’s credit for ti…
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Cozza v. State, 756 So. 2d 272 (Fla. 3d DCA 2000)…ndant can waive credit for time served as part of a plea agreement, such waiver must be clearly shown on the record. “Where a defendant’s waiver of credit for time served is not clearly shown on the record, it will not be presumed.” Wells v. State, 751 So. 2d 703, 704 (Fla. 1st DCA 2000) (citations omitted); see also Reyes v. State, 752 So. 2d 139 (Fla. 3d DCA 2000); Weaver v. State, 24 Fla. L. Weekly D 2242, — So. 2d -, 1999 WL 765946 (Fla. 3d DCA Sept. 29, 1999). The same logic applies to revocation of com…
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Briggs v. State, 929 So. 2d 1151 (Fla. 5th DCA 2006)…tate, 851 So. 2d 831 (Fla. 1st DCA 2003). Further, a waiver of jail credit will not be presumed and the state has the burden to clearly establish a waiver occurred. See Ryan; Haines; Cozza v. State, 756 So. 2d 272 (Fla. 3d DCA 2000); Wells v. State, 751 So. 2d 703 (Fla. 1st DCA [*1154] 2000); Silverstein v. State, 654 So. 2d 1040 (Fla. 4th DCA 1995). That was not done in this case. Accordingly, we reverse the order denying credit for jail time served and remand to the trial court to award the 209 days that w…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Mancino, 714 So. 2d 429 (Fla. 1998)
- Silverstein v. State, 654 So. 2d 1040 (Fla. 4th DCA 1995)
- Moore v. State, 741 So. 2d 577 (Fla. 5th DCA 1999)
- Alton Eugene Diggs v. State, 727 So. 2d 346 (Fla. 1st DCA 1999)