CYNTHIA LICATA, APPELLANT/CROSS-APPELLEE,
v.
STATE OF FLORIDA, APPELLEE/CROSS-APPELLANT
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The court held that time spent on pre-trial house arrest is not equivalent to incarceration in county jail and therefore not eligible for credit against a prison sentence under the relevant statute.
Appellant was convicted of aggravated battery and sentenced to imprisonment with credit for time served, including pre-trial house arrest. The state m…
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GROSS, J.
We grant the state’s motion for rehearing on the cross-appeal.
Appellant was convicted after a jury trial of aggravated battery with a deadly weapon, a baseball bat. The sentencing guidelines scoresheet reflected a “lowest permissible prison sentence” of 34.8 months. The trial judge sentenced appellant to three years imprisonment, followed by two years probation. The court ordered 217 days credit for time served, which included 144 days spent on pre-trial house arrest.
Section 921.161(1), Florida Statutes (2000), sets out the scope of the credit against a prison sentence to which a defendant is entitled. That section 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 she or he spent in the county jail before sentence. The credit must be for a specified period of time and shall be provided for in the sentence.
(Emphasis supplied).
In McCarthy v. State, 689 So. 2d 1095, 1097 (Fla. 5th DCA 1997), the fifth district held that there was no statutory authority for “crediting” time spent on house arrest against a prison sentence. The defendant in McCarthy argued that he should be given credit for 159 days served on pretrial “home confinement,” arguing that it was the equivalent of incarceration in county jail. Affirming the trial court’s decision to deny such credit, the fifth district wrote that:
[ijncarceration has been defined confinement in a governmental institution such that a defendant’s liberty is circumscribed to the functional equivalent of custody in the county jail. A house arrest program in which the defendant wears an electronic bracelet used for monitoring his whereabouts, and checks with a supervisor daily by telephone and weekly in person, imposes restraints on the defendant’s liberty prior to trial, but the conditions do not impose on the defendant restraints which are so onerous as to be equivalent to incarceration in the county jail or the forensic ward of a mental hospital.
689 So. 2d at 1096 (citations omitted). See Myers v. State, 761 So. 2d 486 (Fla. 5th DCA 2000) (noting that there is no statutory basis permitting credit for time served on house arrest and that house arrest is not the equivalent to incarceration in jail); Fernandez v. State, 627 So. 2d 1 (Fla. 3d DCA 1993) (holding defendant not entitled to credit for time served on pretrial house arrest).
We reverse the sentence and remand for a new sentencing hearing. The trial judge may have computed the length of the original sentence believing that the full 217 day credit was appropriate. For any new sentence, appellant shall be entitled to credit for only the 73 days she actually spent in jail before sentence.
FARMER and STEVENSON, JJ., concur.
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Citator
Cited By (11 total)
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Cregan v. State, 884 So. 2d 127 (Fla. 4th DCA 2004)…on of liberty in this case. The court cited decisions from this court and another concerning claims for credit for house arrest time served, and recognizing that a court may deny credit for jail time served on community control. See Licata v. State, 788 So. 2d 1063 (Fla. 4th DCA 2001); Chancey v. State, 614 So. 2d 18 (Fla. 4th DCA 1993). Here, the court did not appear to exercise its discretion to deny credit for the Turning Point Bridge drug program. Rather, it appears that the trial court denied credit as…
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Turner v. State, 32 So. 3d 86 (Fla. 2d DCA 2009)…served. Before the actual pronouncement of sentence, Turner’s attorney asked that his client be given credit for time spent while released on GPS monitoring. The parties and judge agreed that Turner had no right to such credit, see Licata v. State, 788 So. 2d 1063, 1063-64 (Fla. 4th DCA 2001), but concluded that it could be awarded in the judge’s discretion. Judge Wolfe then pronounced the following: “Give him credit for all time served, noting the Court nor his attorney can tell him how many days that will b…
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Labovick v. State, 37 So. 3d 914 (Fla. 4th DCA 2010)…PER CURIAM. Affirmed. See Licata v. State, 788 So. 2d 1063 (Fla. 4th DCA 2001). GROSS, C.J., STEVENSON and CIKLIN, JJ., concur.…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Fernandez v. State, 627 So. 2d 1 (Fla. 3d DCA 1993)
- McCARTHY v. State, 689 So. 2d 1095 (Fla. 5th DCA 1997)
- Wicks v. State, 761 So. 2d 486 (Fla. 5th DCA 2000)