ROY E. WELCH
v.
STATE OF FLORIDA
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Roy E. Welch appeals the revocation of his probation and resulting sentence, challenging the trial court's failure to provide prison credit for time served before resentencing. The First District Court of Appeal held that Welch was entitled to such credit under established law and remanded for correction of the sentencing order.
The court held that upon probation violation and resentencing, an accused is entitled to prison credit for all time served on the charge prior to resentencing. The trial court erred by failing to include the prison credit language in its sentencing order. The court also found the second issue (inconsistency between written order and oral pronouncement) was not subject to further discussion on affirming.
[1] An accused is entitled to prison credit for all time served on a charge prior to resentencing upon a violation of probation and resentencing.
[2] A written sentencing order that fails to reflect credit for time served in prison prior to resentencing must be corrected.
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Join FLexlaw to unlock all legal intelligence“Upon a violation of probation and resentencing, an accused is entitled to prison credit for all time served on the charge prior to resentencing.”
Establishes the governing legal standard from Nix v. State that applies to Welch's case.
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Join FLexlaw to unlock all legal intelligenceWelch was previously sentenced to prison and then released on probation. Upon violation of his probation, he was resentenced. The written sentencing o…
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FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA _____________________________
No. 1D2023-0161 _____________________________
ROY E. WELCH,
Appellant,
v. STATE OF FLORIDA,
Appellee.
_____________________________
On appeal from the Circuit Court for Suwannee County. David W. Fina, Judge.
October 9, 2024 PER CURIAM.
Appellant Roy Welch appeals the revocation of his probation and resulting sentence. He asserts that the trial court erred when it denied his motion to correct sentencing errors. He advances two arguments for reversal. First, he claims that the trial court’s written order does not provide credit for time served in prison prior to resentencing. Second, he argues that the written order is inconsistent with the court’s oral pronouncement and should be corrected as to the last count. We write to address the first issue and affirm on the second without further discussion.
“Upon a violation of probation and resentencing, an accused is entitled to prison credit for all time served on the charge prior to resentencing.” Nix v. State, 941 So. 2d 568, 569 (Fla. 1st DCA
2
2006). Here, Appellant was previously sentenced to prison and then released on probation. The written sentencing order includes a paragraph for the trial court to indicate the time served in jail between the date of arrest for the violation of probation and the date of resentencing, followed by a direction to the Department of Corrections to compute and apply the appropriate credit for the time he previously served in prison along with the original jail time credit. However, the trial court failed to select this paragraph when completing the final order. We remand for the trial court to correct the sentencing order to provide prison credit. We note that this correction does not require the presence of Appellant. See Jordan v. State, 143 So. 3d 335, 339 (Fla. 2014) (noting that “resentencing a defendant in his absence will be harmless where it only involves a ministerial act”).
AFFIRMED in part, REVERSED and REMANDED in part.
OSTERHAUS, C.J., and M.K. THOMAS and LONG, JJ., concur.
_____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.
_____________________________
Jessica J. Yeary, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody, Attorney General, and Amanda Afeazue Uwaibi, Assistant Attorney General, Tallahassee, for Appellee.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Jordan v. State, 143 So. 3d 335 (Fla. 2014)
- NIX v. State, 941 So. 2d 568 (Fla. 1st DCA 2006)