Joseph A. Barbesco v. State of Florida
264 So. 3d 338
Fla. Dist. Ct. App.2019Background
- Appellant pleaded no contest on April 13, 2011 to kidnapping (Count I) and robbery (Count II) in case 2010-CF-109 and was sentenced to prison with 460 days jail credit awarded for time served; the plea noted that the credit flowed from jail time served in case 2010-CF-100.
- The 460 days of credit was applied to both case 2010-CF-109 and case 2010-CF-100 per the plea stipulation.
- While on probation for 2010-CF-109, the State alleged a violation; Appellant entered an open plea, probation was revoked, and he was resentenced to 120 months with 1,915 days credit; the judge did not include the previously awarded 460 days for 2010-CF-109 in the new calculation.
- In a Rule 3.801 postconviction motion, Appellant sought restoration of the rescinded 460 days; the postconviction court awarded 45 additional days (total 1,959) but denied 414 days as attributable only to 2010-CF-100.
- The First DCA held that jail credit previously awarded cannot be rescinded on resentencing (including after probation revocation) absent an express waiver, and thus remanded for the additional 414 days to be applied to case 2010-CF-109.
Issues
| Issue | Barbesco's Argument | State's Argument | Held |
|---|---|---|---|
| Whether previously awarded jail credit may be rescinded on resentencing after probation revocation | The 460 days awarded at original sentencing cannot be rescinded; seeks restoration of all 460 days to 2010-CF-109 | Argued 414 of the days were only attributable to 2010-CF-100 and thus not owed on 2010-CF-109 | Court: Credit previously awarded cannot be withdrawn; Appellant entitled to the remaining 414 days for 2010-CF-109 |
| Whether jail credit forfeits on probation violation/resentence | Jail credit remains despite probation revocation; no forfeiture absent explicit waiver | Argued the trial court correctly excluded credit tied to separate case custody | Court: Jail credit is not forfeited by probation revocation and cannot be rescinded sua sponte |
Key Cases Cited
- Washington v. State, 199 So. 3d 1110 (Fla. 1st DCA 2016) (trial court may not rescind previously awarded jail credit)
- Session v. State, 37 So. 3d 873 (Fla. 1st DCA 2010) (rescission of jail credit increases penalty and implicates double jeopardy)
- Wheeler v. State, 880 So. 2d 1260 (Fla. 1st DCA 2004) (enhancing sentence after initial imposition violates double jeopardy)
- Tomiuk v. State, 663 So. 2d 681 (Fla. 5th DCA 1995) (jail credit is not forfeited when resentenced after probation violation)
- Sylvester v. State, 842 So. 2d 977 (Fla. 2d DCA 2003) (reversing rescission of negotiated jail credit upon probation violation even if miscalculated)
- Mohammad v. State, 138 So. 3d 1174 (Fla. 3d DCA 2014) (absent express waiver, jail credit must be awarded at resentencing upon probation violation)
- Lebron v. State, 870 So. 2d 165 (Fla. 2d DCA 2004) (trial court may not rescind previously awarded jail credit)
- Linton v. State, 702 So. 2d 236 (Fla. 2d DCA 1997) (sentence enhancement after imposition violates double jeopardy)
- Toler v. State, 493 So. 2d 489 (Fla. 1st DCA 1986) (procedural authority referenced concerning postconviction review)