ANTONIO COZZA, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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A defendant is entitled to credit for time served on the incarcerative portion of a split sentence, even after violating community control, unless the credit was clearly waived.
[1] 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 be…
[2] A waiver of credit for time served must be clearly shown on the record and will not be presumed.
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Join FLexlaw to unlock all legal intelligenceDefendant received a split sentence including jail time followed by community control. After violating community control, he was sentenced to prison a…
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COPE, J.
Upon the State’s confession of error, with which we agree, we reverse the order denying credit for time served, and remand for further proceedings.
Defendant-appellant Cozzo entered a no contest plea to charges of armed burglary and armed robbery in exchange for a split sentence of 364 days in the Dade County Jail, followed by one year of community control, followed by three years of probation. Upon completion of the jail term, he was released to community control, which he violated. He pled guilty to the violation and was sentenced to three years in state prison. The trial court awarded seventy-three days of credit for time served, but did not grant credit for the term of incarceration in the Dade County Jail.
The First District has said:
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. 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.”
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 community control.
Because the present record does not conclusively refute defendant’s claim to credit for the incarcerative portion of the split sentence, the order must be reversed and the cause remanded for further proceedings. See Fla. R.App. P. 9.140(f). The transcript of defendant’s guilty plea to violation of community control is not in the record now before us. If defendant did not waive his right to credit for time served during the incarcerative portion of the split sentence, then he is entitled to such credit. See Wells, 751 So. 2d at 704.
The case law relied on by the trial court does not address this issue. The trial court cited Davenport v. State, 664 So. 2d 323 (Fla. 1st DCA 1995), but the question there was whether the defendant would be entitled to credit for time served where he had two cases but was only in custody on one of them. See -id. at 324. The trial court focused on that part of Davenport which states, “A violation of probation is a separate and distinct charge which may result in incarceration.” Id. at 324. The court interpreted this to mean that a violation of probation is a separate crime, and therefore the defendant is not entitled to credit for the incarcerative portion of the split sentence. That is incorrect. In Davenport the defendant committed a new crime while already on probation. The First District simply made the point that the prosecution for violation of probation was distinct from the prosecution for the new substantive offense, and each is a separate case for purposes of calculating credit for time served. See id.
A “violation of probation is not itself an independent offense punishable at law in Florida.” Lambert v. State, 545 So. 2d 838, 841 (Fla.1989). Instead, once the court revokes probation or community control, the court resentences the offender on the original charge, and may “impose any sentence which it might have originally imposed before placing the probationer or offender on probation or into community control.” § 948.06(1), Fla. Stat. (1995). The court then is to grant credit for time served, unless such credit has been waived as part of a plea bargain.
The trial court also relied on Echols v. State, 660 So. 2d 782, 786 (Fla. 4th DCA 1995), and Garrett v. State, 693 So. 2d 114, 115 (Fla. 2d DCA 1997). In those cases the courts prohibited the defendant from receiving double credit for time served. That issue is likewise not involved here.
We reverse the order denying postcon-viction relief and remand for further consideration of the request for credit for time served. If in his plea bargain on the violation of community control the defendant waived the right to credit for time served during the incarcerative portion of the split sentence, then defendant will not be entitled to any further credit. Absent such a waiver, however, the defendant will be entitled to credit for the incarceration period actually served in the Dade County Jail.
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (26 total)
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Joyner v. State, 988 So. 2d 670 (Fla. 3d DCA 2008)…uage just quoted in Johnson and four of this court’s earlier decisions: Griffin v. State, 838 So. 2d 1218 (Fla. 3d DCA 2003); Ryan v. State, 837 So. 2d 1075 (Fla. 3d DCA 2003); Sommers v. State, 829 So. 2d 379 (Fla. 3d DCA 2002); and Cozza v. State, 756 So. 2d 272 (Fla. 3d DCA 2000). We conclude that all of the cases are distinguishable and that there is no internal decisional conflict. In Cozza, this court remanded because the plea colloquy was not in the postcon-viction record on appeal. 756 So. 2d at 273.…
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Hines v. State, 906 So. 2d 1137 (Fla. 3d DCA 2005)…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 2003). A review of the plea colloquy reflects that the defendant waived credit for time served prior to December 24, 2002 when he specifically agreed to a forty-eight month prison sent…
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Briggs v. State, 929 So. 2d 1151 (Fla. 5th DCA 2006)…te, 837 So. 2d 1075 (Fla. 3d DCA 2003); Haines v. State, 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 rem…
Previewing 3 of 26 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Lambert v. State, 545 So. 2d 838 (Fla. 1989)
- Echols v. State, 660 So. 2d 782 (Fla. 4th DCA 1995)
- Davenport v. State, 664 So. 2d 323 (Fla. 1st DCA 1995)
- Davis v. State, 751 So. 2d 703 (Fla. 4th DCA 2000)
- Wells v. State, 751 So. 2d 703 (Fla. 1st DCA 2000)
- Batts v. State, 693 So. 2d 114 (Fla. 5th DCA 1997)
- Garrett v. State, 693 So. 2d 114 (Fla. 2d DCA 1997)
- Reyes v. State, 752 So. 2d 139 (Fla. 3d DCA 2000)