Smith v. State

• Decision Date: 23 December 2010
• Docket Number: No. 5D10-1578.,5D10-1578.
• Parties: Scott Alan SMITH, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

52 So.3d 781

Scott Alan SMITH, Appellant,

v.STATE of Florida, Appellee.

No. 5D10-1578.

District Court of Appeal of Florida,

Fifth District.

Dec. 23, 2010.

Scott A. Smith, Lowell, pro se.

Bill McCollum, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.

COHEN, J.

We review the trial court's order denying Appellant's Florida Rule of Criminal Procedure 3.850 postconviction motion on the basis that Appellant waived any credit for time served before his arrest for violation of probation.

On October 20, 2003, Appellant was convicted in Lake County of two counts of burglary of a dwelling and one count of strong-armed robbery and sentenced to three years' prison followed by three years' drug offender probation. He served from January 5, 2004, until March 26, 2005, when he began probation. After a violation of probation, on July 23, 2007, he entered a plea agreement which terminated his probation and resulted in a new sentence of five years' probation with the following pertinent condition: "five years DOC suspended (should [defendant] violate, susp. sent. begins from date of arrest on VOP )." On August 14, 2007, Appellant was arrested on charges of aggravated assault with a deadly weapon and reckless driving. He remained in the Orange County jail until May 12, 2008, when he pled guilty to the Orange County offenses, was sentenced to two years' prison, and granted 272 days' credit for time served in Orange County. Appellant has been incarceratedsince May 22, 2008. While serving his Orange County sentence, Lake County issued a detainer for Appellant.

On February 18, 2009, Appellant was transported from Marion Correctional Institute to Lake County to face the charge of violation of probation on the 2002 convictions. He remained in Lake County until April 1, 2009, when he pled guilty to the violation of probation and was sentenced to fifty-four months' prison with 300 days' credit for time served. The plea agreement states: "Admit / Adj. guilty / revoke & terminate[.] Defendant shall serve the prev suspended sentence of 54 months in the Dept. of Corrections w/ all CTS and GTC from date of arrest for VOP."

Appellant's rule 3.850 motion seeks credit: (1) for time served in 2002 and 2003 prior to his original sentencing; (2) for time served in prison from 2003 until March 26, 2005; and (3) for 593 days served from the date of his arrest for the violation of probation on August 15, 2007, to the date of his plea on April 1, 2009.

The trial court denied Appellant any relief, ruling that he

knowingly and voluntarily waived any previous credit both before he ever violated his probation, on July 23, 2007, [ ] and pursuant to his plea agreement, April 1, 2009. Therefore, [Appellant] is not entitled to any credit previous to his arrest on the VOP on August 15, 2007, as he agreed to in his plea agreements.

Appellant filed a motion for rehearing and/or clarification, indicating that the trial court's ruling that he was not allowed credit prior to August 15, 2007, was consistent with his request for 593 days' credit from August 15, 2007, to April 1, 2009. The trial court denied the motion for rehearing.

A sentence that does not mandate credit for time served is illegal because a trial court has no discretion to impose a sentence without crediting a defendant with time served. State v. Mancino, 714 So.2d 429, 433 (Fla.1998). A defendant can, however, waive credit for time served as part of a plea agreement when such waiver is clearly shown on the record. Cozza v. State, 756 So.2d 272, 273 (Fla. 3d DCA 2000).

The record must clearly show that the defendant waived his or her entitlement to such credit. Briggs v. State, 929 So.2d 1151, 1153 (Fla. 5th DCA 2006). Further, a waiver of jail credit will not be presumed and the State has the burden to clearly establish a waiver occurred. Id. The 2007 plea agreement's language that the suspended sentence begins from the date of his VOP arrest appears to, but does not unequivocally demonstrate, Appellant's clear intent to waive jail credit for earlier time served. See, e.g., Cheatum v. State, 992 So.2d 877, 878 n. 2 (Fla. 5th DCA 2008) (remanding, where plea colloquy not part of record, for attachments to demonstrate plea agreement's statement that defendant's agreement to a sentence from the date of arrest on the violation showed clear intent to waive jail credit prior to his arrest on the violation). The 2009 plea agreement which reads "Admit/ Adj. guilty/ revoke & terminate[.] Defendant shall serve the prev suspended sentence of 54 months in the Dept. of Corrections w/all CTS and GTC from date of arrest for VOP" also appears to support the...