Opinion
No. 3D19-1080
11-20-2019
Nelson P. VILLALONA, Appellant, v. The STATE of Florida, Appellee.
Nelson P. Villalona, in proper person. Ashley Moody, Attorney General, and Sandra Lipman, Assistant Attorney General, for appellee.
Nelson P. Villalona, in proper person.
Ashley Moody, Attorney General, and Sandra Lipman, Assistant Attorney General, for appellee.
Before EMAS, C.J., and SALTER and LOBREE, JJ.
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. Instead, the trial court should have determined 1) 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 failure to award a defendant proper credit for prior prison time served is cognizable on a motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a). Agharaumunna v. State, 126 So. 3d 266 (Fla. 3d DCA 2010) ; Bolduc v. State, 251 So. 3d 314 (Fla. 2d DCA 2018). And as provided in rule 3.800(a), a court "may at any time correct an illegal sentence imposed by it .... "
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 order 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.
We find the other claims raised in Villalona's motion are without merit and affirm without discussion the trial court's order denying those claims.