Opinion
No. 3D12-2575 Lower Tribunal No. 09-15547 Lower Tribunal No. 09-22090 Lower Tribunal No. 11-13853B
11-07-2012
Willie Foster, Appellant, v. The State of Florida, Appellee.
Willie Foster, in proper person. Pamela Jo Bondi, Attorney General, for appellee.
Not final until disposition of timely filed motion for rehearing.
An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Jose L. Fernandez, Judge.
Willie Foster, in proper person.
Pamela Jo Bondi, Attorney General, for appellee. Before WELLS, C.J., and SHEPHERD and LAGOA, JJ.
WELLS, Chief Judge.
Willie Foster appeals an order denying his Florida Rule of Criminal Procedure 3.800 motion for credit for time served. Because the record before us fails to conclusively refute Foster's claim that he is entitled to an additional 357 days of jail credit, we reverse and remand for further proceedings.
In his Rule 3.800 motion, Foster alleged that he was incarcerated in the county jail for a total of 934 days before sentencing on case numbers F09-105547, F09-22090 and F11-13853B, but that he received only 577 days of jail credit for his sentences on those case numbers. Foster set forth the date of his presentence incarceration and his calculation of the credit to which he believes he is entitled. Foster did not attach any documents to the motion, but further alleged that the court file and jail records would conclusively demonstrate the error in jail credit that he had received. Foster's motion was facially sufficient. See Espinosa v. State, 916 So. 2d 47, 48 (Fla. 3d DCA 2005) (finding that similar allegations set forth an adequate legal and factual basis for post-conviction relief under Rule 3.800); see also Joseph v. State, 16 So. 3d 946, 947 (Fla. 3d DCA 2009) (finding that there is no requirement "that the defendant . . . attach a document from the Department of Corrections stating the amount of credit the Department had awarded"). The trial court summarily denied the motion without explanation or attachment of any portion of the record to support its finding and referred the matter to the Department of Corrections for review.
On appeal from a summary denial of a Rule 3.800 motion, this court must reverse unless the post-conviction record, see Fla. R. App. P. 9141(b)(2)(A), shows conclusively that the defendant is entitled to no relief. See Fla. R. App. P. 9.141(b)(2)(D). Because the limited record before us—which consists only of Foster's motion and the order—fails to show that Foster is not entitled to relief, we reverse and remand for further proceedings.
"The trial court, not the Department of Corrections, is responsible for presentencing jail time credit." See Monroe v. State, 842 So. 2d 265, 265 (Fla. 2d DCA 2003). On remand, the lower court should examine the court file and the jail card, if necessary, to determine whether Foster is entitled to additional credit for time served. See Hidalgo v. State, 729 So. 2d 984, 985 (Fla. 3d DCA 1999). "Moreover, after said review, the trial court should either attach those portions of the record that conclusively refute [Foster's] claim or award him the appropriate credit for time served." Galarza v. State, 962 So. 2d 985, 986 (Fla. 3d DCA 2007).
Reversed and remanded for further proceedings consistent with this opinion.