NEAL PALMER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that jail credit, once awarded, cannot be rescinded, and the trial court erred in failing to award the proper amount of jail credit.
[1] Jail credit cannot be rescinded after it has been awarded, even if the award was made in error.
[2] A trial court's failure to award the proper amount of jail credit requires reversal and remand for further proceedings.
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Join FLexlaw to unlock all legal intelligenceAppellant was sentenced to probation and awarded initial jail credit. After being arrested for a violation of probation (VOP), he remained in jail unt…
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Appellant raises two issues in this direct appeal: 1) whether the trial court erred by not giving him the proper amount of jail credit, and 2) whether the trial court erred in finding him in violation of probation (VOP). We affirm the second issue without discussion, and for the reasons that follow, we reverse the first issue and remand for further proceedings.
In August 2007, pursuant to a plea agreement, Appellant was sentenced to a total of 10 years of probation in Case Nos. 2006-438-CF and 2007-104-CF. The judgment and sentence in those cases reflect that Appellant was awarded 210 days of jail credit in the 2006 case and 138 days of jail credit in the 2007 case.
On October 2, 2007, Appellant was arrested for a VOP. He remained in jail until the VOP hearing on January 16, 2008, at which the trial court found him guilty of the VOP, revoked his probation, and sentenced him to five years in prison followed by five years of probation with credit for time served. There was confusion at the VOP hearing regarding the amount of jail credit to which Appellant was entitled, and the trial court reserved ruling on the issue.1
The judgment and sentence entered after the VOP hearing included the notation “to be submitted by separate order” on the line for jail credit. Similar language was included in the orders revoking Appellant’s probation. No separate order on jail credit was entered by the trial court before this appeal was filed.
Appellant filed a motion to correct his sentence pursuant to rule 3.800(b)(2) while this appeal was pending. The motion requested “seven (7) months in 06-CF-670 *797[sic]; and four (4) months and 28 days jail credit in 07-CF-104,” and an additional 107 days of credit in both cases for the time served by Appellant between his arrest and the VOP hearing.2
The trial court denied the motion, but awarded Appellant 129 days of credit in the 2006 ease and 248 days of credit in the 2007 case. It is unclear how the trial court came up with those figures. The trial court’s order stated that “Defendant’s motion fails to facially demonstrate how he is entitled to jail credit in excess of the stipulated credits of 129 days credit on 06-438 and 248 days credit on 07-0104,” but we cannot find such a stipulation in the record.
Jail credit cannot be rescinded after it has been awarded, even if the award was made in error. See Wheeler v. State, 880 So.2d 1260, 1261 (Fla. 1st DCA 2004). Without the stipulation referenced by the trial court, the record does not refute Appellant’s claim that the trial court failed to award him the proper amount of jail credit. Accordingly, we reverse and remand for further proceedings for the trial court to award Appellant all of the jail credit that he has earned.
AFFIRMED in part; REVERSED in part; and REMANDED.
HAWKES, C.J., and WOLF, J., concur.
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Citator
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Washington v. State, 199 So. 3d 1110 (Fla. 1st DCA 2016)…was awarded in error. Davis v. State, 63 So. 3d 847, 847 (Fla. 1st DCA 2011); see also Harris v. State, 74 So. 3d 1099 (Fla. 1st DCA 2011) (reversing and remanding for the reinstatement of jail credit that was improperly rescinded); Palmer v. State, 22 So. 3d 795, 797 (Fla. 1st DCA 2009) (“Jail credit cannot be rescinded after it has been awarded, even if the award was made in error.”); Stang v. State, 24 So. 3d 566, 570 (Fla. 2d DCA 2009) (“[A] trial court may not rescind jail credit that was previously awa…
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Davis v. State, 63 So. 3d 847 (Fla. 1st DCA 2011)…inal judgment and sentence of June 19, 2009. We have repeatedly held that jail credit cannot be rescinded after it has been awarded, even if the credit was awarded in error. See Wheeler v. State, 880 So. 2d 1260 (Fla. 1st DCA 2004), Palmer v. State, 22 So. 3d 795 (Fla. 1st DCA 2009), and Session v. State, 37 So. 3d 873 (Fla. 1st DCA 2010). Accordingly, we reverse and remand for entry of a judgment and sentence reflecting the original award of jail credit. In other respects, the amended judgment and sentence…
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Harris v. State, 74 So. 3d 1099 (Fla. 1st DCA 2011)…ail credit for time served on Counts IV and V that were improperly rescinded from defendant’s initial judgment and sentence. See Davis v. State, 63 So. 3d 847 (Fla. 1st DCA 2011); Session v. State, 37 So. 3d 873 (Fla. 1st DCA 2010); Palmer v. State, 22 So. 3d 795 (Fla. 1st DCA 2009); Canete v. Dep’t of Corrs., 967 So. 2d 412 (Fla. 1st DCA 2007); Wheeler v. State, 880 So. 2d 1260 (Fla. 1st DCA 2004). AFFIRMED IN PART, REVERSED IN PART and REMANDED. DAVIS, PADOVANO, and ROWE, JJ., concur.…
Authorities Cited
- Wheeler v. State, 880 So. 2d 1260 (Fla. 1st DCA 2004)