Filed: Feb. 17, 2016
Latest Update: Mar. 02, 2020
Summary: NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT STATE OF FLORIDA, ) ) Appellant, ) ) v. ) Case No. 2D14-2146 ) ROXANA A. PATINO, ) ) Appellee. ) ) Opinion filed February 17, 2016. Appeal from the Circuit Court for Hillsborough County; Samantha L. Ward, Judge. Pamela Jo Bondi, Attorney General, Tallahassee, and Christina Zuccaro, Assistant Attorney General, Tampa, for Appellant. Kim Suzanne Seace of Kim Sea
Summary: NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT STATE OF FLORIDA, ) ) Appellant, ) ) v. ) Case No. 2D14-2146 ) ROXANA A. PATINO, ) ) Appellee. ) ) Opinion filed February 17, 2016. Appeal from the Circuit Court for Hillsborough County; Samantha L. Ward, Judge. Pamela Jo Bondi, Attorney General, Tallahassee, and Christina Zuccaro, Assistant Attorney General, Tampa, for Appellant. Kim Suzanne Seace of Kim Seac..
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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
STATE OF FLORIDA, )
)
Appellant, )
)
v. ) Case No. 2D14-2146
)
ROXANA A. PATINO, )
)
Appellee. )
)
Opinion filed February 17, 2016.
Appeal from the Circuit Court for
Hillsborough County; Samantha L. Ward,
Judge.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Christina Zuccaro,
Assistant Attorney General, Tampa, for
Appellant.
Kim Suzanne Seace of Kim Seace, P.A.,
Tampa, for Appellee.
PER CURIAM.
Roxana Patino entered an open guilty plea to DUI manslaughter and DUI
with property damage. On the DUI manslaughter conviction, the trial court sentenced
her to the statutory mandatory minimum term of four years in prison pursuant to section
316.193(3)(c)(3), Florida Statutes (2012), to be followed by eleven years of probation.
The trial court awarded Patino 540 days of jail credit. On the DUI with property damage
conviction, the trial court sentenced Patino to time served. The State appeals Patino's
sentence, arguing that the jail credit award was improper. See Fla. R. App. P.
9.140(c)(1)(M).
Following her arrest on the DUI charges, Patino spent two days in county
jail. She was then released on bond. As conditions of her bond she was required to
wear a GPS monitor and to remain at home unless she was at work, medical
appointments, or meetings with her attorney. Patino was permitted to drive for work
purposes. Patino wore the GPS monitor as part of her home detention for 538 days.
Both before and after the trial court accepted her plea, Patino, the State,
and the trial court discussed the issue of jail credit. Patino asked the trial court to award
her 540 days of jail credit, to be applied to her four-year mandatory minimum prison
sentence. She claimed entitlement to the two days she spent in jail and to the 538 days
she wore the GPS monitor while released on bond, pursuant to section 921.161(1),
Florida Statutes (2012).
Relying on Turner v. State,
32 So. 3d 86 (Fla. 2d DCA 2009), the trial
court granted Patino's request for 540 days of jail credit. Acknowledging that Patino
was "not legally entitled by law" to credit for time on GPS monitoring, the trial court
noted that Turner "holds that it's discretionary for the [c]ourt to award that [credit]."
Further, and despite finding that Patino was not legally entitled to credit, the trial court
found that the GPS monitoring in Patino's case "is a coercive deprivation of liberty as
contemplated under Florida Statute 921.161," which mandates credit for such
deprivation. The State objected to the credit for time spent on GPS monitoring.
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The trial court erred in both of its findings. The State has framed the legal
issues as whether the 538 days of GPS monitoring qualify as jail credit and whether
such an award renders Patino's sentence unlawful and illegal in part. Although it did not
expressly allocate the award of jail credit, the trial court correctly granted Patino's
request for credit for the two days she spent in county jail. See ยง 921.161(1). The trial
court erred, however, in granting Patino 538 days of credit for the time she was subject
to GPS monitoring. Section 921.161(1) requires credit for time served "in any institution
serving as the functional equivalent of a county jail." State v. Cregan,
908 So. 2d 387,
389 (Fla. 2005) (emphasis omitted) (quoting Tal-Mason v. State,
515 So. 2d 738, 740
(Fla. 1987)). GPS monitored home detention does not hit that mark. See Sweitzer v.
State,
46 So. 3d 1132, 1132-33 (Fla. 1st DCA 2010) (stating that the postconviction
court correctly denied defendant's motion for jail credit for time spent on bond with GPS
monitoring and "that a person who remains free while on pretrial release, despite some
restrictions, is not entitled to [jail] credit" for that time); McCarthy v. State,
689 So. 2d
1095, 1096 (Fla. 5th DCA 1997) ("A house arrest program in which the defendant wears
an electronic bracelet used for monitoring his whereabouts . . . imposes restraints on
the defendant's liberty prior to trial, but the conditions do not impose on the defendant
restraints which are so onerous as to be equivalent to incarceration in the county jail or
the forensic ward of a mental hospital."). Consequently, the trial court lacked specific
authority to award jail credit for the time Patino was subject to GPS monitoring.
Because the GPS monitoring was not the "functional equivalent of a county jail," the
credit for the 538 days of such monitoring was unlawful. See State v. Brogan,
100 So.
3d 184, 185 (Fla. 4th DCA 2012).
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Further, the trial court erred in finding that our opinion in Turner gave it
discretion to award credit for time spent on GPS monitoring. Turner simply reiterates
the established rule that "a trial court may not rescind jail credit previously awarded
even if the initial award was improper" and where the State has not appealed the
issue.
32 So. 3d at 87 (quoting Lebron v. State,
870 So. 2d 165, 165 (Fla. 2d DCA 2004));
accord King v. State,
86 So. 3d 1247, 1248 (Fla. 2d DCA 2012). In Turner, the
defendant was sentenced at one hearing, pursuant to a negotiated plea agreement, in
two cases. Although the parties and the trial court agreed that Turner had no legal right
to credit for time spent on GPS monitoring while on pretrial release, the trial court
awarded credit for that time in both cases. However, the orally pronounced jail credit
was not reflected on either written sentence. When Turner later filed a motion to correct
illegal sentence, he cited only one of his two cases. The postconviction court granted
his motion as to that case and rendered a corrected sentencing document. Some two
weeks later, Turner filed a motion in his other case, asserting that he was entitled to jail
credit in both cases as this was the sentencing court's intention. The postconviction
court denied Turner's second motion. We reversed, concluding that the previously
awarded and unchallenged jail credit was required to be applied in both cases, even
where the initial award of the credit was improper. Within this conclusion is the
necessary implication that improperly awarded jail credit can and must be challenged
timely by the State, as is the case here. To conclude otherwise would negate the
usefulness of rule 9.140(c)(1)(M). Turner simply does not stretch as far as the trial court
thought.
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Here, the State has properly appealed an erroneous award of jail credit
which renders Patino's sentence unlawful. See Gardner v. State,
30 So. 3d 629, 633-34
(Fla. 2d DCA 2010) (Altenbernd, J., dissenting) ("[T]he original sentence was subject to
reversal on appeal by the State . . . ."), majority disapproved by and dissent cited with
approval in Dunbar v. State,
89 So. 3d 901 (Fla. 2012). Nothing in Turner can be read
to suggest otherwise. Cf.
Dunbar, 89 So. 3d at 906 (stating that a defendant's sentence
is subject to reversal on a well-taken State appeal). Because the time Patino spent on
GPS monitoring is not the functional equivalent of jail, that aspect of her sentence is
unlawful and must be stricken.
The State has not challenged any other aspect of Patino's sentence.
Aside from the 538 days of credit for GPS monitoring, Patino's sentence is legal. Thus,
we affirm Patino's sentence but remand for the trial court to strike the 538 days of GPS
monitoring credit. This is a ministerial act and Patino need not be present. See Brogan,
100 So. 3d at 186-87.
Affirmed; remanded with directions.
LaROSE, BLACK, and SALARIO, JJ., Concur.
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