DAVID WAITHE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a defendant is entitled to credit for all time served on prior probation violations when resentenced.
David Waithe was convicted of violating probation and the trial court awarded credit only for time served on the current violation, not prior ones. Wa…
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POLEN, J.
Appellant, David Waithe, appeals a final order of judgment and restitution, entered as the result of a conviction for violation of probation. Waithe previously served time for four separate violations of probation. At the sentencing hearing for the instant violation, the trial court noted that the record indicated that Waithe should receive credit for 568 days time served. The State disagreed with this amount, arguing that Waithe should receive credit only for the time served for this particular violation of probation. Defense counsel objected, arguing that Waithe should receive credit for all time served on this and the previous violations. The trial court agreed with the State and sentenced Waithe to two years in prison, with credit for time served of 73 days. We disagree with the trial court’s determination and reverse and remand for resentencing.
Section 921.161(1), Florida Statutes, provides, in relevant part: “[T]he court imposing a sentence shall allow a defendant credit for all of the time she or he spent in the county jail before sentence.” § 921.161(1), Fla. Stat. “The award of jail time credit is mandatory under section 921.161, Florida Statutes, unless the record clearly shows that the defendant waived his or her entitlement to such credit.” Briggs v. State, 929 So. 2d 1151, 1153 (Fla. 5th DCA 2006). The credit for time served includes any portion of jail time served for prior violations of probation. See Tomiuk v. State, 663 So. 2d 681 (Fla. 5th DCA 1995) (“jail time credit is not forfeited when a defendant is resentenced as a result of a violation of probation or community control”).
We reverse and remand for re-sentencing. On remand, the trial court shall conduct a sentencing hearing to determine the appropriate amount of time served that will be credited against Waithe’s original two-year sentence.
KLEIN and MAY, JJ., concur.
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Davis v. State, 88 So. 3d 1055 (Fla. 4th DCA 2012)…Robinson v. State, 827 So. 2d 345, 345 (Fla. 4th DCA 2002) (citation omitted). A defendant is also entitled to credit for time served in jail for [*1057] the current violation of probation and prior violations of the same probation. Waithe v. State, 941 So. 2d 534, 535 (Fla. 4th DCA 2006) (citation omitted). Credit is mandatory unless the record clearly reflects that the defendant waived such credit. Id. In its response to the motion, the State cited Gathers v. State, 838 So. 2d 504 (Fla.2003), as support fo…
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Reasee v. State, 123 So. 3d 693 (Fla. 4th DCA 2013)…entence jail time because it was time served in jail prior to being sentenced on VOP-II. [*695] “[T]he court imposing a sentence shall allow a defendant credit for all of the time she or he spent in the county jail before sentence.” Waithe v. State, 941 So. 2d 534, 535 (Fla. 4th DCA 2006) (quoting § 921.161(1), Fla. Stat. (2011)). This credit for time served is mandatory under section 921.161 and includes any portion of jail time served for the current violation of probation and prior violations of the same p…
Authorities Cited
- Briggs v. State, 929 So. 2d 1151 (Fla. 5th DCA 2006)
- Tomiuk v. State, 663 So. 2d 681 (Fla. 5th DCA 1995)