Petscher v. State, 5D05-3319.

• Decision Date: 23 June 2006
• Docket Number: No. 5D05-3319.,5D05-3319.
• Citation: 936 So.2d 639
• Court: Florida District Court of Appeals
• Parties: Mark PETSCHER, Appellant, v. STATE of Florida, Appellee.

Page 639

936 So.2d 639

Mark PETSCHER, Appellant, v. STATE of Florida, Appellee.

No. 5D05-3319.

District Court of Appeal of Florida, Fifth District.

June 23, 2006.

Rehearing Denied August 28, 2006.

3.800 Appeal from the Circuit Court for Volusia County, C. Vernon Mize, Senior Judge.

Mark Petscher, Bowling Green, pro se.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.

PER CURIAM.

AFFIRMED.

GRIFFIN, J., concurs.

ORFINGER, J., concurs specially, with opinion.

SAWAYA, J., dissents, with opinion.

ORFINGER, J., concurring.

Mark Petscher appeals the summary denial of his motion for additional jail credit filed pursuant to Florida Rule of Criminal Procedure 3.800(a). I agree we should affirm, although not for the reasons stated in the order by the trial court.

Petscher's motion alleged that he is entitled to 314 days of additional jail credit on three Volusia County felony cases. While an error in a trial court's award of jail credit can be raised at any time in a motion filed pursuant to rule 3.800(a), the motion must affirmatively allege that the trial court records demonstrate on their face an entitlement to relief. A mere conclusory allegation that the answer lies somewhere in the record is insufficient to satisfy the pleading requirements of the rule. Baker v. State, 714 So.2d 1167, 1167 (Fla. 1st DCA 1998). At a minimum, a rule 3.800 motion should state where in the record the information can be located and explain how the record demonstrates entitlement to relief. Alfonso v. State, 901 So.2d 939, 939 (Fla. 4th DCA 2005); Toro v. State, 719 So.2d 947, 948 (Fla. 4th DCA 1998). That was not done here, as Petscher merely alleges, without any reference to the record, that he is entitled to additional jail credit.¹

If the claim cannot be resolved from the face of the record without resorting to fact-finding, Petscher must file a timely motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. Maynard v. State, 763 So.2d 480, 481 (Fla. 4th DCA 2000).²

SAWAYA, J., dissenting.

Petscher was initially sentenced to concurrent terms of imprisonment to be followed by a term of probation in three cases for crimes committed in Volusia County. While serving the probationary portion of his sentence, Petscher violated and was placed back on probation in the three cases for a period of five years. He violated again and was committed to the Department of Corrections with credit for the time he had previously served in prison. Petscher subsequently filed a facially sufficient Motion to Correct Illegal Sentence pursuant to rule 3.800, Florida Rules of Criminal Procedure, alleging that he was not given credit for the 314 days he spent in a boot camp facility, which he claims was a part of his sentence. The trial court summarily denied the motion, finding that Petscher failed to demonstrate "that he had anything other than a detainer until he arrived in Volusia County." Petscher appeals that order, contending that he has been wrongfully deprived of credit for the time he spent in the boot camp, and requests this court to correct his illegal sentence.

According to the State, as alleged in its Response to Appeal from 3.800 Summary Denial filed in the instant proceedings, Petscher was under community supervision with the Department of Corrections and the boot camp was a condition of that supervision. The State contends in its Response that Petscher is not entitled to credit for time spent in the boot camp because

[n]o part of the time that a defendant is on probation or community control shall be considered as any part of the time that he or she shall be sentenced to serve. § 948.06(3), F.S.2005. Appellant is not entitled to credit for time served as a condition of his probation.

Section 948.06(3) provides in pertinent part that "[w]hen the court imposes a subsequent term of supervision following a revocation of probation or community control, it shall not provide credit for time served while on probation or community control toward any subsequent term of probation or community control." I do not believe that this statute is applicable in instances where boot camp is imposed as a condition of supervision. In my view, the statute that governs such instances is section 921.161(1), which provides in pertinent part that "the 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 courts have held that credit for time served must be given when the defendant was sentenced to jail as a condition of supervision. See Barnishin v. State, 927 So.2d 68, 71 (Fla. 1st DCA 2006) ("He should also have received credit on each sentence for the time he served in jail, as a condition of probation in both cases, from August 19, 2004, until August 31, 2004, awaiting a place in a drug treatment program.") (citing Truette v. State, 914 So.2d 1074, 1074 (Fla. 1st DCA 2005) ("Because Appellant served time in jail as a special condition of his probation, he is entitled to credit for that time upon his sentencing for violation of probation.")).

The question is whether boot camp is the functional equivalent of jail. See Tal-Mason v. State, 515 So.2d 738, 740 (Fla. 1987) ("For these reasons, we decline to read section 921.161(1), Florida Statutes, as a statement that jail-time credit may only be granted for time spent in an institution formally designated as a "county jail." ... Our courts already have tacitly recognized that a detainee must be granted credit for time served prior to conviction in any institution serving as the functional equivalent of a county jail."). I believe boot camp is the functional equivalent of county jail, and the courts have consistently held that a defendant must be credited with the time he or she served in a boot camp prior to sentencing. See Lewis v. State, 894 So.2d 1085 (Fla. 1st DCA 2005); Obando v. State, 867 So.2d 645 (Fla. 3d DCA 2004); Griffin v. State, 838 So.2d 1218 (Fla. 3d DCA 2003); Barger v. State, 744 So.2d 1159 (Fla. 1st DCA 1999); Miller v. State, 731 So.2d 866 (Fla. 1st DCA 1999). Moreover, the courts require that appropriate credit be given for time served when the defendant is sentenced for violating the probationary portion of a split sentence. Atkinson v. State, 860 So.2d 982, 984 (Fla. 1st DCA 2003) ("[A]ppellants are always entitled to prison credit previously served upon violating the probationary portion of a split sentence.") (citing Layman v. State, 787 So.2d 44, 45 (Fla. 2d DCA 2001)); see also Lewis, 894 So.2d at 1086 ("As the State concedes, appellant should have been granted prison credit on the sentence imposed on his violation of probation for the time he spent in boot camp.").³ Therefore, the State's asserted reason for denying Petscher his claim for jail credit is wrong; rather, just as Petscher alleges, he may be entitled to credit for any time he served in the boot camp as a condition of his supervision.

Despite the allegation by Petscher that he did serve 314 days in a boot camp facility as part of the sentence imposed in the Volusia County cases and the State's Response apparently conceding that fact, the trial court ruled that Petscher is not entitled to credit because the time he spent was the result of a detainer on other charges. However, the trial court failed to attach relevant portions of the record refuting Petscher's claim, which impedes us from properly determining whether Petscher or the trial court is correct. In these instances, this court and others have consistently held that reversal and remand is the appropriate remedy.⁴ In Brown v State, 816 So.2d 1142 (Fla. 5th DCA 2002), for example, we held:

Brown appeals from the trial court's denial of his post-conviction motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a), in which he seeks jail time credit against his sentence. He alleges he should have been awarded 294 days jail time credit for time spent in jail from December 5, 1997 when he was arrested, to September 25, 1998 when he was sentenced. The trial court denied the credit of time giving as the reason the fact that Brown was not arrested on the escape charge on December 5, 1997, but was picked up on the warrant on March 24, 1998. However, the trial court failed to attach any portion of the record to support its stated reason.

The denial of a defendant's rule 3.800(a) motion when sufficient allegations are made to afford relief, should include not only valid reasons for the denial by the trial court, but also attachments of portions of the record sufficient to support the denial. The rule places on the trial court the obligation to attach sufficient portions of the record to refute the defendant's claim. See Moore v. State, 741 So.2d 577 (Fla. 5th DCA 1999); Bunch v. State, 622 So.2d 525 (Fla. 5th DCA 1993).

Accordingly, we reverse and remand for the purpose of allowing the trial court to attach sufficient portions of the record to refute Brown's claim for jail time credit. Should the court conclude that the motion cannot be decided on the face of the record, it may deny the motion without prejudice so that Brown may file a rule 3.850 motion.

Id. at 1142-43.

This is the appropriate remedy in instances where it appears that the trial court's order may be correct, or when the state attempts to correct the error by submitting portions of the record in an appendix attached to its response in the appellate proceedings. See, e.g., Bennett v. State, 904 So.2d 447, 447 (Fla. 4th DCA 2005) ("In denying a legally sufficient 3.800(a) motion, the trial court's failure to attach portions of the record refuting the defendant's claim is reversible error, and the State cannot cure this error by providing the records to this court on appeal."); Frederick v. State, 899 So.2d 1281, 1281 (Fla. 5th DCA 2005) ("As the State correctly observes, while the trial court's...