Lopez v. State

• Decision Date: 19 December 2012
• Docket Number: No. 3D12–275.,3D12–275.
• Citation: 103 So.3d 991
• Parties: Melvin LOPEZ, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

103 So.3d 991

Melvin LOPEZ, Appellant,

v.The STATE of Florida, Appellee.

No. 3D12–275.

District Court of Appeal of Florida,

Third District.

Dec. 19, 2012.

Melvin Lopez, in proper person.

Pamela Jo Bondi, Attorney General, for appellee.

Before CORTIÑAS, EMAS and FERNANDEZ, JJ.

EMAS, J.

Melvin Lopez appeals the trial court's summary denial of his motion, filed pursuantto Florida Rule of Criminal Procedure 3.800, seeking an award of additional credit for time served. We reverse.

The material facts are not in dispute. Lopez was originally charged in 2002. Following a negotiated plea in 2003, he was placed on two years of community control followed by ten years' probation. From 2003 to 2007, Lopez was arrested in Miami–Dade County on at least three separate occasions and charged with violating his probation. On each of those occasions, he spent time in the county jail awaiting a disposition of the violations. On each of those occasions, Lopez was reinstated to probation.¹

In the instant violation, Lopez was taken into custody and held in the county jail from February 2, 2010 until March 30, 2011. At that time, Lopez entered an admission to the violation of probation and a sentencing hearing was held at which Lopez sought a downward departure sentence. This was not a plea negotiated between the State and defense, but an open plea to the court. Following a presentation by the defense, the trial court revoked probation and sentenced Lopez to seven years in prison. At the conclusion of the trial court's sentencing announcement, it indicated Lopez would only receive “credit for time served since the last booking date [i.e., from February 2, 2010 to March 30, 2011].” The issue of credit for time served was not discussed at any other time during the sentencing proceeding, and the trial court did not discuss this issue with Lopez or his counsel before awarding this limited credit for time served.

Lopez thereafter filed a motion seeking additional credit for the time he had served in the county jail while awaiting disposition of his previous probation violations.² The trial court summarily denied the motion and this appeal followed.

Ordinarily, a defendant is entitled to all credit for time served in county jail awaiting sentencing. See§ 921.161(1), Fla. Stat. (2011) (“[T]he court imposing a sentence shall allow a defendant credit for all of the time she or he spent in the county jail before sentence. The credit must be for a specified period of time and shall be provided for in the sentence”); Ryan v. State, 837 So.2d 1075, 1076 (Fla. 3d DCA 2003) (stating “[t]he general rule is that a sentence that does not mandate credit for time served is illegal since a trial court has no discretion to impose a sentence without crediting a defendant with time served”).

An exception to this general rule allows a defendant to waive his right to some or all of his credit for time served; however, such a waiver must be knowing and voluntary. The most common example of such a waiver occurs in the context of a negotiated plea. See e.g., Joyner v. State, 988 So.2d 670 (Fla. 3d DCA 2008); Render v. State, 802 So.2d 512 (Fla. 3d DCA 2001). Had the defendant knowingly and voluntarily entered a negotiated plea, and had such a negotiated plea included a condition that the defendant would only receive credit for the time he spent in custody since his most recent arrest (i.e., from February 2, 2010 to March 30, 2011), the trial court's sentence in this case would have been proper, as Lopez would have waived any right to receive credit for any time spent in custody on his previous violations of probation. Such is not the case here, and the State properly acknowledges that Lopez entered an open plea to the court, admitting to the violation and seeking a downward departure sentence. At no time did the sentencing court discuss with Lopez a waiver of any credit for time...