RANDI HOLMES, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE

Fla. 3d DCA | 2009-05-27
No. 3D08-620
Before WELLS, ROTHENBERG, and LAGOA, JJ.
11 So. 3d 444 Florida District Court of Appeal, Third District (2009) Caution
Cited by 3 cases

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Holding

A defendant can waive credit for time served as part of a plea agreement, provided the waiver is clearly shown on the record.


Headnotes

[1] A defendant may waive credit for time served as part of a plea agreement, provided the waiver is clearly shown on the record.

[2] A provision in a plea agreement awarding credit for time served from a specific date effectively waives any claim for time served before that date.

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Facts & Procedural History

Appellant was resentenced after probation revocation and sought additional credit for time served. The trial court denied his motion, finding he had w…

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Opinion of the Court
LAGOA, Judge.

LAGOA, Judge.

Appellant, Randi Holmes (“Holmes”), appeals the denial of his motion to correct sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). In the motion, Holmes asserts that he was entitled to additional credit for time served when his probation was revoked and he was resentenced. For the foregoing reasons, we affirm the trial court’s denial.

On March 27, 2006, Holmes was taken into custody on probation violation affidavits, and on September 28, 2007, Holmes entered an admission to the probation revocation charges. Prior to the admission by Holmes, extensive discussions occurred between the trial court, the State, and defense counsel, as to the amount of credit for time served that Holmes would be awarded.1

After the trial court questioned Holmes as to the voluntariness of the plea, the trial court made the following finding: •

I accept your admission to this violation of probation. Pursuant thereto [sic] revoke your probation, adjudicate you guilty of those crimes, I sentence to you [sic] 8.1 years in State prison with credit for all time served since the affidavit was filed in these cases which is I am told dated March 27, 2000—
State: Actually March 28.
Probation Office: 2006.
Court: Okay.
⅜: ⅜ ⅜ ⅜
The Court: Prepare a court order that says he shall receive credit for all time since the affidavit was filed against himself while he was in custody March 28, '06. That will be provided to Corrections.

On January 24, 2008, Holmes filed a motion to correct illegal sentence arguing that he was entitled to credit for 1,744 days of time previously served and that the trial court had awarded him credit only for time starting with the filing of the affidavit of violation of probation on March 28, 2006.

*446On February 19, 2008, the trial court in a written order denied the motion and stated as follows:

On March 27, 2006, the defendant was taken into custody on probation violation affidavits filed in the above-styled cases. On September 28, 2007, the defendant accepted a court offer of 8.1625 years in state prison with jail credit for the time that he had spent incarcerated on the probation violation affidavits in the instant cases. See Transcript of September 28, 2007, attached. As such, he is only entitled to jail credit which he knowingly accepted at the time of the plea. See Hines v. State, 906 So.2d 1137 (Fla. 3d DCA 2005).

This appeal ensued.

This Court has repeatedly held, and we do so again hold, that while a defendant is entitled to receive credit for the time served in jail before sentencing, a defendant may waive credit for the time served as part of a plea agreement. The waiver, however, must be clearly shown on the record. See Johnson v. State, 974 So.2d 1152, 1152 (Fla. 3d DCA 2008) (“a provision in a plea agreement that the defendant is to be awarded credit for time served from a specific date effectively waives any claim for time served before that date”); Hines v. State, 906 So.2d 1137, 1138 (Fla. 3d DCA 2005).

On appeal, Holmes, however, argues that no waiver of credit for time served is apparent from the plea colloquy. We disagree. In this case, a review of the plea colloquy reflects that Holmes waived any credit for time served prior to the March 28, 2006, probation violation affidavit. As such, we conclude that the trial court did not err in finding that the plea colloquy conclusively demonstrates that Holmes waived his right to be awarded credit for any additional time served, other than that which he expressly agreed to at his plea colloquy. Accordingly, we affirm the trial court’s denial of the motion for postconviction relief.

Affirmed.


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Citator

Cited By

  • Javis Reddix v. State, 15 So. 3d 614 (Fla. 3d DCA 2009)
    …dissent, Johnson v. State, 974 So. 2d 1152 (Fla. 3d DCA 2008), and Joyner, 988 So. 2d at 670, arc inapposite. Both included written waivers of credit for time served. . Our case is similarly distinguishable from our recent release, Holmes v. State, 11 So. 3d 444 (Fla. 3d DCA 2009) (stating that defendant’s express assent to proceed with plea colloquy after his counsel stated, “he [the defendant] just wants to be clear what he is getting credit for,”) id. at 445 n. 1, "conclusively demonstrates that Holmes w…
  • Raymel J. Roque v. State, 61 So. 3d 1205 (Fla. 3d DCA 2011)
    …PER CURIAM. Affirmed. Holmes v. State, 11 So. 3d 444 (Fla. 3d DCA 2009).…

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