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663 So. 2d 681

Docket No. 95-2344.

Tomiuk v. State

Bernard TOMIUK, Appellant, v. STATE of Florida, Appellee.

District Court of Appeal of Florida

Decided December 1, 1995.

District Court of Appeal of Florida · decided 1995-12-01

Key passage — most relied on by later courts

“[Section 921.161(1) ] establishes that jail time credit is not forfeited when a defendant is resentenced as a result of a violation of probation or community control and, therefore, the defendant is entitled to receive credit for the 262 days he served prior to the imposition of the original sentence.”

quoted by 1 later decision, including 264 So. 3d 338 - Barbesco v. State

Relies on Bowers v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1995-12-01

How this case has been cited

Cited by 8 later decisions — most recently February 2019

8 state decisions

40199520002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1Bernard Tomiuk, Orlando, pro se.

¶2Robert A. Butterworth, Attorney General, Tallahassee, and Anthony J. Hall, Assistant Attorney General, Daytona Beach, for Appellee.

¶3ANTOON, Judge.

¶4The defendant appeals the summary denial of his 3.800 motion to correct an illegal sentence, alleging that his sentence was illegal because he did not receive credit for the time he served in the county jail. We agree that the sentence was illegal and, therefore, reverse.

¶5On June 8, 1993, the defendant was sentenced to a term of three years in prison followed by two years of community control for grand theft. The sentencing court awarded defendant 262 days of credit for the time he spent in the county jail awaiting trial and sentencing.

¶6After being released from prison, the defendant violated his community control. As a result of this violation, on March 11, 1994, the defendant's community control was revoked, and the defendant was sentenced to five years in prison. The sentencing order included a provision that the defendant must receive a credit for "prev. DOC time and 25 days," but the order did not provide credit for the original 262 days which the defendant had served in the county jail.

¶7The defendant thereafter filed a 3.800 motion seeking credit for the 262 days. The motion was summarily denied by the trial court. Attached to the order were copies of documents relevant to sentencing, but none of these documents support the trial court's ruling denying the defendant's request for jail time credit.

¶8Section 921.161(1), Florida Statutes (1993), provides:

A sentence of imprisonment shall not begin to run before the date it is imposed, but the court imposing a sentence shall allow a defendant credit for all of the time spent in the county jail before sentencing.

¶9This language establishes that jail time credit is not forfeited when a defendant is resentenced as a result of a violation of probation or community control and, therefore, the defendant is entitled to receive credit for the 262 days he served prior to the imposition of the original sentence. See Bowers v. State,645 So.2d 1108 (Fla.1st DCA 1994).

¶10REVERSED and REMANDED to the trial court with instructions to award the defendant credit for 262 days time served.

¶11HARRIS and GRIFFIN, JJ., concur.

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