NELSON P. VILLALONA
v.
THE STATE OF FLORIDA
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The appellate court reversed a trial court's denial of a motion to correct an illegal sentence. The defendant sought credit for time served in prison on a probationary split sentence before violating probation and being resentenced.
Yes, a defendant who serves time in state prison on a probationary split sentence, violates probation, and is resentenced to prison is entitled to credit for the time previously served in state prison.
[1] A defendant resentenced to prison after violating probation is entitled to credit for time previously served in state prison on the original probationary split sentence.
[2] The failure to award a defendant proper credit for prior prison time served is cognizable on a motion to correct an illegal sentence.
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“As the State properly acknowledged in its response, a defendant who, pursuant to a probationary split sentence, serves time in state prison, is released on probation, violates that probation, and is thereafter resentenced to prison, is entitled to credit for the time he previously served in state prison.”
Establishes the general rule regarding credit for time served on probationary split sentences.
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Join FLexlaw to unlock all legal intelligenceNelson Villalona was serving a probationary split sentence, which included time in state prison. After violating probation, he was resentenced. He sou…
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PER CURIAM.
Nelson Villalona appeals the trial court’s order summarily denying his motion to correct illegal sentence which sought, inter alia, credit for prison time previously served on his original probationary split sentence.
As the State properly acknowledged in its response, a defendant who, pursuant to a probationary split sentence, serves time in state prison, is released on probation, violates that probation, and is thereafter resentenced to prison, is entitled to credit for the time he previously served in state prison. See Saavedra v. State, 59 So. 3d 191, 192 (Fla. 3d DCA 2011) (holding: “A defendant who is sentenced to incarceration because he violated the probationary portion of a split sentence is entitled to receive credit for time served in prison before being placed on probation”); Isaac v. State, 992 So. 2d 304, 305 (Fla. 3d DCA 2008) (same); Jacobs v. State, 990 So. 2d 587 (Fla. 3d DCA 2008); Mann v. State, 109 So. 3d 1202 (Fla. 5th DCA 2013) (holding a defendant sentenced to a probationary split sentence who violates probation and is resentenced to prison is entitled to credit for all time actually served in prison prior to his release on probation, unless such credit is waived).
See also § 921.0017, Fla. Stat. (2019) (providing in pertinent part that the trial court “shall direct the Department of Corrections to compute and apply credit for all other time served previously on the prior sentence for the offense for which the offender is being recommitted . . .”).
In the instant case, the trial court incorrectly denied this claim as time-barred.1 Instead, the trial court should have determined1) whether defendant is entitled to credit for time previously served in State prison;2) if so, the number of days defendant served in State prison as part of the incarcerative portion of his probationary split sentence prior to being placed on probation; 3) whether the trial court, at the time of his sentencing following his probation violation hearing, properly directed the Department of Corrections to calculate and credit defendant for time previously served in State prison; and 4) whether defendant waived his right to any or all of the credit for time previously served in State prison. See Isaac, 992 So. 2d at 305; Rey v. State, 262 So. 3d 839 (Fla. 3d DCA 2018).
The State has properly conceded that this case should be remanded for the trial court to make these determinations. We therefore reverse that portion of the order2 which denied Villalona’s motion for prison credit, and remand to the trial court to make the above-described determinations and for further proceedings consistent with this opinion.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Isaac v. State, 992 So. 2d 304 (Fla. 3d DCA 2008)
- Agharaumunna v. State, 126 So. 3d 266 (Fla. 3d DCA 2010)
- Elton Bolduc v. State, 251 So. 3d 314 (Fla. 2d DCA 2018)
- Mann v. State, 109 So. 3d 1202 (Fla. 5th DCA 2013)
- Alwin Jacobs v. State, 990 So. 2d 587 (Fla. 3d DCA 2008)
- Rey v. State, 262 So. 3d 839 (Fla. 3d DCA 2018)