DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
ANTONIO LOPEZ,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D18-725
[June 13, 2018]
Appeal of order denying rule 3.801 motion from the Circuit Court for
the Seventeenth Judicial Circuit, Broward County; Geoffrey D. Cohen,
Judge; L.T. Case No. 04-19499 CF10A.
Antonio Lopez, Raiford, pro se.
Pamela Jo Bondi, Attorney General, Tallahassee, and Rachael Kaiman,
Assistant Attorney General, West Palm Beach, for appellee.
GERBER, C.J.
The defendant, after being sentenced for a violation of probation,
appeals from the circuit court’s order granting in part and denying in part
his Florida Rule of Criminal Procedure 3.801 motion for correction of jail
credit. The defendant’s motion alleged he was given credit for 1,189 days,
and should have been awarded 1,624 days. The circuit court’s order,
without explanation or record attachments, granted the defendant an
additional 68 days of credit, but not the additional 435 days which the
defendant requested.
In response to this court’s order to show cause, the state agrees that
the defendant’s motion was facially insufficient. Thus, the circuit court,
instead of addressing the merits of the defendant’s motion, should have
stricken the motion as facially insufficient and given the defendant leave
to amend within sixty days. We reverse and remand for that purpose.
Florida Rule of Criminal Procedure 3.801(c) provides that a motion for
correction of jail credit shall be under oath and include:
(1) a brief statement of the facts relied on in support of the
motion;
(2) the dates, location of incarceration, and total time for
credit already provided;
(3) the dates, location of incarceration, and total time for
credit the defendant contends was not properly awarded;
(4) whether any other criminal charges were pending at the
time of the incarceration noted in subdivision (c)(3), and if
so, the location, case number, and resolution of the
charges; and
(5) whether the defendant waived any county jail credit at the
time of the sentencing, and if so, the number of days
waived.
The defendant’s motion does not state all of the dates and location of
incarceration, whether any other criminal charges were pending at the
time of these incarceration periods, and if so, the location, case number
and resolution of the charges. More importantly, the defendant’s motion
refers to various “V.O.P. holds” without explanation of whether he was
served with the VOP warrant for this case while incarcerated in another
county. The defendant would not be entitled to jail credit for this case
while incarcerated in another county if there was merely a “V.O.P. hold,”
i.e., a detainer, for this case without being served with the VOP warrant
for this case. See Gethers v. State, 838 So. 2d 504, 505 (Fla. 2003)
(“[A]bsent the execution of an arrest warrant, a defendant who is in jail in
a specific county pursuant to an arrest on one or more charges need not
be given credit for time served in that county on charges in another county
when the second county has only lodged a detainer against the
defendant.”).
Based on the foregoing, we reverse the circuit court’s order granting in
part and denying in part the defendant’s rule 3.801 motion for additional
jail credit. We remand for the circuit court to instead enter an order
striking the motion as facially insufficient, and granting the defendant
sixty days to file a facially sufficient motion providing the information
specified in rule 3.801(c) and this opinion. See Fla. R. Crim. P. 3.801(e)
(applying rule 3.850(f) to proceedings under rule 3.801); Fla. R. Crim. P.
3.850(f)(2) (“If [a] motion is insufficient on its face, and the motion is timely
filed under this rule, the court shall enter a nonfinal, nonappealable order
allowing the defendant 60 days to amend the motion.”); Cadet v. State, 239
So. 3d 113, 115 (Fla. 3d DCA 2018) (where the defendant’s motion for jail
credit failed to allege whether or when a probation violation arrest warrant
was executed on him, the circuit court should not have denied the
defendant’s motion on its merits, but instead should have entered a
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nonfinal, nonappealable order allowing the defendant sixty days to amend
the motion to state a legally sufficient claim).
Reversed and remanded for proceedings consistent with this opinion.
WARNER and DAMOORGIAN, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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