LARRY L. DORTLY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Larry Dortly appeals the trial court's denial of his motion for prison credit after violating probation and being resentenced to prison. The appellate court reverses, holding that Dortly is entitled to credit for time served in prison prior to his initial release on probation unless he waived that credit or the denial is supported by a negotiated plea agreement under Fulcher.
A defendant sentenced to a probationary split sentence who violates probation and is resentenced to prison is entitled to credit for all time actually served in prison prior to his release on probation unless the credit is waived or denied based on a negotiated plea agreement under Fulcher. The defendant is entitled to such credit even when it results in immediate release.
[1] A defendant sentenced to a probationary split sentence who violates probation and is resentenced to prison is entitled to credit for all time actually served in prison pr…
[2] A defendant is entitled to prison credit for time served prior to probation, even when such credit results in immediate release.
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Join FLexlaw to unlock all legal intelligence“A defendant sentenced to a probationary split sentence who violates probation and is resentenced to prison is entitled to credit for all time actually served in prison prior to his release on probation unless such credit is waived.”
Establishes the core legal rule that split-sentenced defendants are entitled to prison credit for pre-probation time served absent waiver.
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Join FLexlaw to unlock all legal intelligenceDortly was convicted and sentenced in 2006 and 2007 to concurrent terms with probation. He was released on probation in June 2011 but violated it. In …
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Larry Dortly appeals the denial of his motion seeking an award of prison credit filed pursuant to Florida Rule of Criminal Procedure 8.800(a). Upon the State’s proper concession of error, we reverse.
In 2006 and 2007, Dortly was convicted in two cases and sentenced to concurrent terms of imprisonment followed by probation. He was released on probation in June 2011. Dortly violated his probation and, in April 2012, he was sentenced to 24 months in prison.1 Dortly did not appeal his judgment and sentence.
On June 18, 2012, Dortly filed a rule 3.800(a) motion in which he alleged that he was not awarded credit for time served in prison prior to his release on probation. The trial court noted that Dortly did not waive his entitlement to the prison credit, but the court nevertheless denied the motion because the award of credit would entitle Dortly to immediate release. The court found this to be an improper and absurd result, relying on Fulcher v. State, 875 So.2d 647 (Fla. 3d DCA 2004).
A defendant sentenced to a probationary split sentence who violates probation and is resentenced to prison is entitled to credit for all time actually served in prison prior to his release on probation unless such credit is waived. See Bradley v. State, 631 So.2d 1096 (Fla.1994); State v. Holmes, 360 So.2d 380, 383 (Fla.1978); Jones v. State, 633 So.2d 482, 483 (Fla. 1st DCA 1994); § 921.0017, Fla. Stat. (2007). The defendant is entitled to such credit even when it results in a “windfall” requiring immediate release. See Cook v. State, 645 So.2d 436, 438 n. 5 (Fla.1994). However, under Fulcher, the defendant may be denied such credit when the post-violation sentence is a result of a negotiated plea agreement and a subsequent grant of prison credit would negate the agreed-upon sentence. See 875 So.2d at 647.
Here, Dortly stated a facially sufficient claim for prison credit, and the trial court failed to attach portions of the record conclusively refuting Dortly’s claim or supporting its finding that relief is precluded under Fulcher. Accordingly, pursuant to Florida Rule of Appellate Procedure 9.141(b)(2)(D), we reverse and remand for the trial court to attach portions of the record conclusively refuting Dortly’s claim or to enter an amended judgment and sentence granting him credit for the time served in prison prior to his release on probation.
REVERSED and REMANDED with directions.
WOLF, VAN NORTWICK, and WETHERELL, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Gonzalez v. State, 194 So. 3d 380 (Fla. 3d DCA 2016)…is entitled to credit for all time actually served in prison prior to his release on probation unless such credit is waived. The defendant is entitled to such credit even when it results in a “windfall” requiring immediate release. Dortly v. State, 107 So. 3d 1229, 1230 (Fla. 1st DCA 2013) (internal citations omitted). See also Sainvilus v. State, 689 So. 2d 1261, 1261-62 (Fla. 3d DCA 1997) (holding that “[a] prisoner who is sentenced to prison for violating probation is entitled to credit for time actually s…
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Mann v. State, 109 So. 3d 1202 (Fla. 5th DCA 2013)…e on probation unless.such credit is waived. See Bradley v. State, 631 So. 2d 1096 (Fla.1994); State v. Holmes, 360 So. 2d 380, 383 (Fla.1978); Jones v. State, 633 So. 2d 482, 483 (Fla. 1st DCA 1994); § 921.0017, Fla. Stat. (2007). Dortly v. State, 107 So. 3d 1229 (Fla. 1st DCA 2013). In contrast, if a defendant violates the probationary portion of a true split sentence, a trial court can revoke probation and impose either the suspended portion of incarceration or any sentence that could have originally been…
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Scharman v. Crews, 123 So. 3d 147 (Fla. 1st DCA 2013)…436, 438 n. 5 (Fla.1994). However, a defendant may be denied such credit when the post-violation sentence is a result of a negotiated plea agreement and a subsequent grant of prison credit would negate the agreed-upon sentence. See Dortly v. State, 107 So. 3d 1229 (Fla. 1st DCA 2013); Fulcher v. State, 875 So. 2d 647, 649 (Fla. 3d DCA 2004). The failure to award credit for time served prior to release on probation is a matter which may be raised in a motion filed on the authority of rule 3.800(a), Florida Rul…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Holmes, 360 So. 2d 380 (Fla. 1978)
- Cook v. State, 645 So. 2d 436 (Fla. 1994)
- L.C. Bradley v. State, 631 So. 2d 1096 (Fla. 1994)
- Fulcher v. State, 875 So. 2d 647 (Fla. 3d DCA 2004)
- Jones v. State, 633 So. 2d 482 (Fla. 1st DCA 1994)
- Morgan v. State, 99 So. 3d 999 (Fla. 1st DCA 2012)
- Donson v. State, 99 So. 3d 999 (Fla. 1st DCA 2012)