WILLIE E. ISAAC, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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A defendant is entitled to credit for time served in prison on the original sentence as part of a split sentence, even after violating probation, unless the waiver is clearly shown on the record.
Willie E. Isaac appealed an order denying his petition for post-conviction relief, seeking credit for time served in prison on the original sentence b…
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SUAREZ, J.
Willie E. Isaac appeals from a final order denying his petition for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse.
A defendant who is sentenced to incarceration because he violated the probationary portion of a split sentence is entitled to receive credit for time served in prison before being placed on probation. See Hines v. State, 906 So. 2d 1137 (Fla. 3d DCA 2005); Fulcher v. State, 875 So. 2d 647, 648 (Fla. 3d DCA 2004); Ryan v. State, 837 So. 2d 1075 (Fla. 3d DCA 2003); Cozza v. State, 756 So. 2d 272 (Fla. 3d DCA 2000). Although a defendant can waive credit for time served in prison on the original sentence as part of a negotiated plea agreement, such waiver must be clearly shown on the record and cannot be presumed. Hines; Fulcher; see also Wells v. State, 751 So. 2d 703, 704 (Fla. 1st DCA 2000).
Because the present record does not conclusively refute Isaac’s claim to credit for the incarcerative portion of his split sentence, the order must be reversed and the cause remanded for further proceedings. See Fla. R.App. P. 9.141(b)(2)(D); Fla. R.App. P. 9.140(i). Neither the transcript of defendant’s probation violation hearing nor his sentencing record are in the record now before us. If defendant did not clearly waive his right to credit for time served during the inearcer-ative portion of the split sentence, then he is entitled to such credit. See Wells, 751 So. 2d at 704.
Reversed and remanded.
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Cited By (11 total)
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Saavedra v. State, 59 So. 3d 191 (Fla. 3d DCA 2011)…umed. See Agharaumunna v. State, — So. 3d -, 2010 WL 3766776 (Fla. 3d DCA 2010) (reversing and remanding be [*193] cause the attached documents do not conclusively refute the defendant’s claim that he is owed credit for time served); Isaac v. State, 992 So. 2d 304, 305 (Fla. 3d DCA 2008) (holding that although a defendant can waive credit for time served in prison on the original sentence as part of a negotiated plea agreement, such waiver must be clearly shown on the record and cannot be presumed). Althoug…
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Javis Reddix v. State, 15 So. 3d 614 (Fla. 3d DCA 2009)…see, e.g., Rivera v. State, 954 So. 2d 1216 (Fla. 3d DCA 2007);2 Fulcher v. State, 875 So. 2d 647 (Fla. 3d DCA 2004) (Cope, J., concurring), a defendant is entitled to credit for the time he served on the original split sentence. See Isaac v. State, 992 So. 2d 304 (Fla. 3d DCA 2008); Brownlee v. State, 899 So. 2d 341 (Fla. 3d DCA 2005); Cozza v. State, 756 So. 2d 272 (Fla. 3d DCA 2000). The record in this case clearly shows Reddix was never asked during his plea colloquy whether he consented to waive his cre…
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Agharaumunna v. State, 126 So. 3d 266 (Fla. 3d DCA 2010)…s owed credit for time served. “Although a defendant can waive credit for time served in prison on the original sentence as part of a negotiated plea agreement, such waiver must be clearly shown on the record and cannot be presumed.” Isaac v. State, 992 So. 2d 304, 305 (Fla. 3d DCA 2008); see also Rudicil v. State, 31 So. 3d 328 (Fla. 4th DCA 2010) (reversing for attachment of plea colloquy because the trial court’s note on the attached sentencing sheet that [*268] Rudicil entered a negotiated plea, and that…
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
- Cleveland Grant v. State, 837 So. 2d 1075 (Fla. 4th DCA 2003)
- Fulcher v. State, 875 So. 2d 647 (Fla. 3d DCA 2004)
- Hines v. State, 906 So. 2d 1137 (Fla. 3d DCA 2005)
- Connor McDUFFIE v. Scotty's, Inc., 756 So. 2d 272 (Fla. 5th DCA 2000)
- Cozza v. State, 756 So. 2d 272 (Fla. 3d DCA 2000)
- Davis v. State, 751 So. 2d 703 (Fla. 4th DCA 2000)
- Wells v. State, 751 So. 2d 703 (Fla. 1st DCA 2000)