final until disposition of timely filed motion for rehearing.
Appeal under Florida Rule of Appellate Procedure 9.141(b)(2)
from the Circuit Court for Miami-Dade County, Miguel M. de la
O, Judge. Lower Tribunal Nos. 16-1233A, 16-1415
Rebecca Utria, in proper person.
Moody, Attorney General, for appellee.
SCALES, HENDON, and MILLER, JJ.
Rebecca Utria appeals the denial of her motion for credit for
jail time served prior to sentencing pursuant to Florida Rule
of Criminal Procedure 3.801. We affirm in part, reverse in
part, and remand for the trial court to determine whether
Utria is entitled to additional credit for jail time served.
See Davis v. State, 219 So.3d 201 (Fla. 3d DCA
was sentenced on March 15, 2018, to twenty-four months in
prison in case number F16-1233A, concurrent with the
twenty-four month sentence imposed on the same date in case
number F16-1415. The plea agreement encompassing both cases
provided that the defendant understood and agreed that, as
part of the plea, she would receive credit for time served
from November 21, 2017 to March 15, 2018. In her Rule 3.801
motion for presentence jail time credit, Utria contends that
she is owed 388 days of jail time credit for time spent in
custody from the time of her initial arrest. Based on
Utria's motion, she was awarded 114 days for time spent
in jail between November 21, 2017 and her March 15, 2018
sentencing. However, her motion also states that she was
incarcerated in the same cases for 388 days prior to November
21, 2017. The trial court denied Utria's request for
additional pre-sentence jail time credit based on the plea
agreement. Utria appeals.
3.801 is the exclusive means to request or challenge
pre-sentence jail time credit. Bryant v. State, 240
So.3d 55 (Fla. 3d DCA 2018) (holding Florida Rule of Criminal
Procedure 3.801 is the exclusive method for seeking a
correction of jail credit). Unlike a rule 3.800(a) motion to
correct an illegal sentence, rule 3.801 does not place any
burden on the defendant to "affirmatively allege that
the court records demonstrate on their face an entitlement to
relief . . ." Rather, "[p]ursuant to Florida Rule
of Criminal Procedure 3.801(e), which incorporates Florida
Rule of Criminal Procedure rule 3.850(f), the circuit court
is required to attach records which conclusively refute the
defendant's motion seeking additional jail credit."
Williams v. State, 141 So.3d 686, 687 (Fla. 4th DCA
2014); see Fla. R. Crim. P. 3.850(f)(5) ("If
the denial is based on the records in the case, a copy of
that portion of the files and records that conclusively shows
that the defendant is entitled to no relief shall be attached
to the final order."); Hoskins v. State, 259
So.3d 892 (Fla. 4th DCA 2018) (same).
record before us is a very limited one; neither the record
nor the trial court's order specifically addresses
Utria's claim for the additional credits for
presentencing jail time served. Critically, there is no
indication in the plea agreement that Utria affirmatively
waived her entitlement to additional jail credit. See
Evans v. State, 237 So.3d 1068 (Fla. 3d DCA 2017);
Cozza v. State, 756 So.2d 272, 273 (Fla. 3d DCA
2000); Cisneros v. State, 985 So.2d 678, 679 (Fla.
4th DCA 2008); see also Smith v. State, 52 So.3d
781, 783 (Fla. 3d DCA 2010) (holding a waiver of jail credit
will not be presumed, and the State has the burden to clearly
establish a waiver occurred).
appeal from a summary denial, this Court must reverse unless
the postconviction record shows conclusively that the
appellant is entitled to no relief. See Fla. R. App.
P. 9.141(b)(2)(A) and (D). Because the trial court failed to
attach any documents refuting Utria's claims, and the
record does not conclusively show whether she waived any
credit for time served, we reverse in part to determine
Utria's entitlement to those additional credits she seeks
to have applied to her sentence; we affirm in part the 114
days of jail credit already awarded. On remand, the trial
court shall examine the court file and the jail card, if
necessary, to determine whether Utria is entitled to
additional credit for time served. See Davis, 219
So.3d at 202; Galarza v. State, 962 So.2d 985, 986
n.1 (Fla. 3d DCA 2007). If the trial court again enters an
order summarily denying the motion for jail credit, the trial
court shall ...