SCOTT T. TOTO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Scott Toto appealed the summary denial of his motion for additional credit for time served in jail. The court affirmed the denial of his claim for thirty-four days of credit from Pinellas County jail but reversed and remanded regarding sixty days of credit from Polk County jail, finding he was entitled to credit for time served on his initial sentence when probation was later revoked.
The court held that Toto's claim for thirty-four days credit from Pinellas County jail was facially insufficient and properly denied because he failed to allege that a detainer was placed on him for the subject cases while incarcerated there. However, the court held that Toto was entitled to sixty days' credit for time served in Polk County jail on the initial petit theft sentence, which must be credited against the sentence imposed after probation revocation.
[1] A postconviction court must attach records that conclusively refute a defendant's claim for jail credit when summarily denying a motion for such credit.
[2] A defendant is entitled to jail credit for time spent in custody after arraignment on new charges, even if incarcerated for other offenses.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“When a trial court imposes probation on one offense consecutive to a sentence of incarceration on another offense, credit for time served on the first offense must be awarded on the sentence imposed after revocation of probation on the second offense.”
Establishes the controlling legal rule requiring Toto receive credit for the initial jail time when his probation was later revoked.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceOn September 30, 1999, Toto pleaded no contest to burglary and petit theft in Polk County. He was sentenced to two years' community control for burgla…
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CASANUEVA, Judge.
Scott Toto appeals the summary denial of his motion for additional credit for time served pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm in part, reverse in part, and remand.
On September 30, 1999, Toto pleaded no contest to burglary and petit theft in Polk County case number CF 99-03752. Toto was sentenced to two years’ community control for the burglary consecutive to sixty days in the county jail for the petit theft. On October 19, 2000, an affidavit alleging violation of probation was filed for case numbers CF 98-04258 and 99-03752. At that time Toto was incarcerated in the Pinellas County jail on an unrelated charge and remained there until November 22, 2000, when he was arrested on the Polk County probation violations. On December 7, 2000, Toto was sentenced to concurrent sentences of 32.8 months in prison for his probation violations on 98-04258 and 99-03752.
Toto first claims that he should be awarded thirty-four days’ credit against the sentences in case numbers 98-04258 and 99-03752 for time served in the Pinel-las County jail. Toto’s claim is facially insufficient for two reasons. First, although Toto would be entitled to credit for time served in another county from the date a detainer was placed on him, even if he was not officially arrested, Bryant v. State, 787 So. 2d 68 (Fla. 2d DCA 2001), he has failed to allege that a detainer was placed on him for these cases while he was incarcerated in Pinellas County. Second, Toto has failed to allege that the court records demonstrate on their face entitlement to relief. Deese v. State, 782 So. 2d 488 (Fla. 2d DCA 2001). Therefore, we affirm the trial court’s order on this claim without prejudice to any right Toto might have to file a facially sufficient rule 3.800(a) motion or a timely motion pursuant to rule 3.850 in the event that factual issues preclude raising this claim pursuant to rule 3.800(a). Hamilton v. State, 752 So. 2d 133 (Fla. 2d DCA 2000).
Toto also argues that he should be awarded seventy-four days’ credit (for case number 99-03752) for the time he served in the Polk County jail after he was sentenced on the petit theft. The trial court denied this claim, reasoning that Toto was not entitled to credit for time spent in jail after he had been sentenced. However, we believe that Toto may be entitled to an additional sixty days’ credit.
When a trial court imposes probation on one offense consecutive to a sentence of incarceration on another offense, credit for time served on the first offense must be awarded on the sentence imposed after revocation of probation on the second offense. Tripp v. State, 622 So. 2d 941, 942 (Fla.1993). Using a single scoresheet, the court sentenced Toto to probation on the burglary conviction consecutive to sixty days of incarceration on the petit theft conviction. Toto is thus entitled to sixty days’ credit on the sentence imposed after he violated probation on the burglary. Id.
The record does not conclusively refute Toto’s claim that he was not awarded credit for this time. We therefore reverse as to this claim. On remand, the trial court must either award Toto this credit or attach record documents showing that Toto has already received this credit.
Affirmed in part, reversed in part, and remanded.
ALTENBERND, A.C.J., and NORTHCUTT, J., Concur.
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Citator
Cited By
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Keene v. State, 816 So. 2d 819 (Fla. 2d DCA 2002)…prison, and he even provided the date the detainer was lodged. Keene further alleged that the claim was determinable from a review of the trial court records. Keene has thus [*820] presented a facially sufficient claim for relief. See Toto v. State, 805 So. 2d 964 (Fla. 2d DCA 2001). The trial court also denied the motion on the merits, correctly finding that Bryant v. State, 787 So. 2d 68 (Fla. 2d DCA 2001), only applied to individuals being held in county jail pursuant to a detainer from another county. Ho…
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Toto v. State, 816 So. 2d 1188 (Fla. 2d DCA 2002)…[*1189] ALTENBERND, Judge. Scott T. Toto appeals a second order entered on his motion for jail credit. This court previously reversed an earlier order and remanded for further proceedings. See Toto v. State, 805 So. 2d 964 (Fla. 2d DCA 2001). It is obvious from the record that we did not adequately communicate our concerns to the trial court. The second order remains defective in part, but only because our first opinion was unclear. Case number CF99-03752 reflects th…
Authorities Cited
- Tripp v. State, 622 So. 2d 941 (Fla. 1993)
- Bryant v. State, 787 So. 2d 68 (Fla. 2d DCA 2001)
- Campbell v. George Battle, M.D., 752 So. 2d 133 (Fla. 3d DCA 2000)
- Hamilton v. State, 752 So. 2d 133 (Fla. 2d DCA 2000)
- Deese v. State, 782 So. 2d 488 (Fla. 2d DCA 2001)