By: Adam L. Bantner, II, The Bantner Firm, Candidate for Hillsborough County Court Judge, Group 2
Credit for time served prior to sentencing is usually a straight forward matter; it equals the number of days spent in custody from the date of arrest to the date of sentencing. However, the clerk, the court, and counsel can sometimes get it wrong. This is especially true when dealing with violations of probation when a defendant has spent time in multiple jurisdictions on multiple charges. This article attempts to simplify Rule. 3.801, Florida Rules of Criminal Procedure, to clarify how counsel can correct the amount of time served when it has been improperly calculated.
The Rule has some basic requirements:
- It must be filed within one year of the date the sentence became final.
- It shall be under oath.
- It shall include a brief statement of the facts, including the dates and locations of incarcerations and the amount of time already credited.
- Whether any other criminal charges were pending during any period of incarceration and, if so, the location, case number and resolution of those charges.
- Whether any credit was waived and, if so, the amount waived.
- It must be signed by the defendant certifying that the defendant has read the motion or that it has been read to the defendant and that the defendant understands its content; the motion is filed in good faith and with a reasonable belief that it is timely filed, has potential merit, and does not duplicate previous motions that have been disposed of by the court; and, the facts contained in the motion are true and correct.
- The defendant must further certify that the defendant can understand English or, if the defendant cannot understand English, that the defendant has had the motion translated completely into a language that the defendant understands. The motion shall contain the name and address of the person who translated the motion and that person shall certify that he or she provided an accurate and complete translation to the defendant.
The most difficult and time consuming task is finding the defendant’s incarceration history and determining whether he or she should receive credit for the time served in that particular jurisdiction. For example, a defendant may be arrested in Pasco County for driving on a suspended license while he or she was serving a probationary sentencing in Hillsborough County. If the defendant did not have a Hillsborough “hold” placed on him for the violation or served with the violation warrant while in custody, he may not be entitled to credit for the time served in Pasco towards his subsequent sentence in Hillsborough. However, if the jail records indicate Hillsborough placed the hold, then counsel must look at the Pasco disposition to see whether anything in the sentencing in that case would cause the defendant to not be able to use the credit in Hillsborough.
Once all the research is concluded, it’s a good practice to attach printouts from the jail and clerk to substantiate the credit claimed in the motion.
Once a completed motion is signed, certified by the client, and filed with the court, it proceeds in same manner as a Rule 3.850 motion, i.e., the court will review the motion for sufficiency and, if sufficient, forward to the State Attorney for response. Depending on the response, it will be granted, denied summarily, or set for a hearing. If the motion was originally deemed insufficient by the court for whatever reason, counsel will have 60 days to file an amended motion.