JOAQUIN CISNEROS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A defendant is entitled to credit for time previously served in prison upon revocation of probation, and such credit cannot be waived unless the waiver is specific, voluntary, and clearly shown on the record.
Cisneros pleaded guilty to escape and was sentenced to prison and probation. After admitting to violating probation, he was sentenced to more prison t…
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HAZOURI, J.
Joaquin Cisneros appeals the denial of his rule 3.800(a) motion which sought credit for time Cisneros previously served in prison in this case.
In June 2001, Cisneros pleaded guilty to escape. He was sentenced to three years in prison followed by three years of probation. In October 2006, Cisneros admitted violating his probation and was sentenced to 60 months in prison with credit for 18 days time served and no credit for time previously served in prison.
Upon sentencing following revocation of the probationary portion of a split sentence, a defendant is entitled to credit for time previously served in prison, and the failure to award such credit is an issue that may be raised in a rule 3.800(a) motion. See Swain v. State, 845 So. 2d 314 (Fla. 2d DCA 2003). A defendant can waive credit for time previously served as part of a plea bargain, but the affirmative waiver of the credit must be clearly shown on the record. See Silverstein v. State, 654 So. 2d 1040, 1041 (Fla. 4th DCA 1995).
The state concedes the waiver of jail time credit must be specific, voluntary, and clearly shown on the record and that such a waiver will not be presumed. We therefore reverse and remand for the trial court to either correct defendant’s sentence, giving him the appropriate jail time credit, or for the attachment to the order of denial the portion of the record which conclusively shows the defendant waived the entitlement to such credit.
Reversed and Remanded for Further Proceedings.
STONE and WARNER, JJ„ concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Javaro Brown v. State, 1 So. 3d 1289 (Fla. 4th DCA 2009)…can either correct Brown’s sentence, giving him the appropriate jail time credit, or attach to the order of denial the portion of the record which conclusively shows the defendant waived the entitlement to such credit. See Cisneros v. State, [*1290] 985 So. 2d 678 (Fla. 4th DCA 2008); Cheatum v. State, 992 So. 2d 877 (Fla. 5th DCA 2008). If the trial court is inclined to treat the motion as one seeking rule 3.850 relief, Brown should have the opportunity to amend his motion accordingly. See generally Woody v.…
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Utria v. State (Fla. 3d DCA 2019)…ere is no indication in the plea agreement that Utria affirmatively waived her entitlement to additional jail credit. See Evans v. State, 237 So. 3d 1068 (Fla. 3d DCA 2017); Cozza v. State, 756 So. 2d 272, 273 (Fla. 3d DCA 2000); Cisneros v. State, 985 So. 2d 678, 679 (Fla. 4th DCA 2008); see also Smith v. State, 52 So. 3d 781, 783 (Fla. 3d DCA 2010) (holding a waiver of jail credit will not be presumed, and the State has the burden to clearly establish a waiver occurred). On appeal from a summary denial,…
Authorities Cited
- Silverstein v. State, 654 So. 2d 1040 (Fla. 4th DCA 1995)
- Richard v. Pruitte, 845 So. 2d 314 (Fla. 2d DCA 2003)