JENNIFER E. SCHERMERHORN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jennifer Schermerhorn appealed the denial of her motion for jail credit under Florida Rule of Criminal Procedure 3.801, claiming she did not receive proper credit for time served in jail following her initial arrest and subsequent probation violation arrests. The appellate court reversed in part and remanded, finding the trial court's reliance on signature dates rather than actual release dates was inadequate and directing further proceedings to determine proper jail credit.
The court reversed and remanded regarding the second and fourth arrests, finding the postconviction court's reliance on signature dates was insufficient evidence of actual release dates and that an evidentiary hearing or conclusive documentary evidence was required. The court affirmed the denial of jail credit for the third and fifth arrests and directed one additional day of credit for the initial arrest period (February 10-12, 2014, being three days rather than two).
[1] A form acknowledging a violation of probation and waiver of rights is not evidence of the date of release from confinement.
[2] A court order modifying probation is not evidence of the date of release from jail.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The postconviction court found that she was released from custody on November 12, 2014, based on the date she signed the acknowledgment of violation of probation and waiver of rights form. But that form is not evidence of when Schermerhorn was released from confinement.”
Establishes that signature dates on probation forms are insufficient evidence of actual release dates for jail credit purposes.
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Join FLexlaw to unlock all legal intelligenceSchermerhorn was arrested on February 10, 2014, for second-degree grand theft and uttering forged instruments, and released on bond on February 12, 20…
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Jennifer E. Schermerhorn timely appeals the order summarily denying her motion for jail credit filed under Florida Rule of Criminal Procedure 3.801.
On February 10, 2014, Schermerhorn was arrested for second-degree grand theft and two counts of uttering a forged instrument. She was released from the Sarasota County jail on bond on February 12, 2014. Schermerhorn pleaded no contest to the offenses on August 15, 2014, and the trial court withheld adjudication and placed her on five years’ probation.
In her motion for jail credit, Schermer-horn alleged that she did not receive proper credit for time she spent in jail after her initial arrest and after her four arrests for violating probation in 2014 and 2015. We reverse for further proceedings because the record attachments to the post-conviction court’s order do not refute her claims for jail credit relating to her second and fourth arrests. In addition, we note that the postconviction court incorrectly found that Schermerhorn was only entitled to two days of credit for the time she spent in jail from February 10, 2014, to February 12, 2014, which is actually a span of three days.
Schermerhorn alleged that her second arrest was on September 13, 2014, and that she was not released from custody until November 14, 2014. The postconviction court found that she was released from custody on November 12, 2014, based on the date she signed the acknowledgment of violation of probation and waiver of rights form. But that form is not evidence of when Schermerhorn was released from confinement.
Schermerhorn alleged that her fourth arrest was on October 7, 2015,1 and that she was not released until she completed the in-jail drug treatment program in Hillsborough County on January 26, 2016. The postconviction court found she was released from jail on November 6, 2015, as evidenced by the acknowledgment of violation of probation and waiver of rights form she signed on that date as well as the order of modification of drug offender probation bearing that date. But again, the acknowledgment form and the order are not evidence of when Schermerhorn was released from jail. In addition, the order of modification of drug offender probation required Schermerhorn to enter and complete the in-jail drug treatment program in the Hillsborough County jail, where she was serving a concurrent sentence.
The attachments to the postconviction court’s order do not refute Schermerhorn’s claims for jail credit relating to her second and fourth arrests. Accordingly, we reverse and remand for the postconviction court to attach portions of the record that conclusively refute Schermerhorn’s claims for additional jail credit with regard to her second and fourth arrests or to hold an evidentiary hearing. See Fla. R. Crim. P. 3.801(e) (incorporating provisions of rule 3.850(f)). We also direct the postconviction court to award Schermerhorn one more day of credit for the time she spent in jail from February 10, 2014, to February 12, 2014. We affirm the postconviction court’s order insofar as it denied Schermerhom’s claims for jail credit concerning her third and fifth arrests. Because Schermerhorn may be entitled to immediate release if the postconviction court cannot conclusively refute her claims, we urge the court to hear this matter expeditiously.
*970Affirmed in part, reversed in part, and remanded.
KELLY, CRENSHAW, and ROTHSTEIN-YOUAKIM, JJ., Concur.