       Third District Court of Appeal
                                State of Florida

                           Opinion filed January 11, 2017.
          Not final until disposition of timely filed motion for rehearing.

                                ________________

                                No. 3D15-2020
                          Lower Tribunal No. 13-26508
                              ________________

                                Willie Shotwell,
                                     Appellant,

                                         vs.

                             The State of Florida,
                                     Appellee.


      An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the
Circuit Court for Miami-Dade County, Cristina Miranda, Judge.

      Willie Shotwell, in proper person.

     Pamela Jo Bondi, Attorney General, and Jacob Addicott, Assistant Attorney
General, for appellee.


Before WELLS, LAGOA, and SALTER, JJ.

      LAGOA, J.

      Appellant, Willie Shotwell (“Shotwell”), appeals the trial court’s denial of

his amended motion for correction of jail credit filed pursuant to Florida Rule of
Criminal Procedure 3.801(a).       We reverse the trial court’s order denying

Shotwell’s motion with prejudice, and remand to the trial court to provide Shotwell

with the opportunity to file an amended, legally sufficient Rule 3.801 motion.

I.    FACTUAL AND PROCEDURAL HISTORY

      On July 8, 2014, in case number F13-26508, Shotwell pled guilty to one

count of aggravated assault with a deadly weapon, and was sentenced to 24 months

imprisonment.

      On August 26, 2014, pursuant to Rule 3.801, Florida Rules of Criminal

Procedure, Shotwell filed a motion for correction of jail credit. In that motion,

Shotwell argued that the trial court’s files contain documents filed on July 8,

2014—his sentencing date—that conclusively establish that, at the time he was

sentenced, he was entitled to 238 days credit for time previously served in Miami-

Dade County Jail and that the sentencing court did not award any credit due for

time served.

      On September 25, 2014, the trial court entered an order summarily denying

Shotwell’s Rule 3.801 motion as insufficient. Subsequently, Shotwell filed a pro

se motion for rehearing acknowledging that the trial court “may have been correct

in stating that Mr. Shotwell’s Motion was insufficient,” as it did not comply with

the requirements of Rule 3.801. Shotwell, therefore, asked the trial court for

permission to amend his motion for correction of jail credit. On December 4,



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2014, the trial court summarily denied Shotwell’s motion for rehearing as

insufficient, and Shotwell filed a Notice of Appeal.

      In its response to that appeal, the State conceded error and asked this Court

to modify the trial court’s decision by affirming the denial of the 3.801 motion to

specify that it was without prejudice to Shotwell refiling an amended motion

within 60 days. Subsequently, in Shotwell v. State, 183 So. 3d 1070, 1070 (Fla. 3d

DCA 2015), this Court affirmed without prejudice to Shotwell filing “an amended,

legally sufficient 3.801 petition within sixty (60) days” of the date of the issuance

of that opinion—May 6, 2015. Six days later, on May 12, 2015, Shotwell filed an

amended 3.801(a) motion for correction of jail credit in this Court. On June 9,

2015, this Court issued an order dismissing Shotwell’s amended 3.801(a) motion

for correction of jail credit “without prejudice,” in order for Shotwell to refile in

the circuit court.

      On June 17, 2015, Shotwell filed a new Rule 3.801(a) motion for correction

of jail credit. In that motion, Shotwell argued that he is entitled to 249 days credit

towards his sentence and that he did not waive any of credit for time served. On

July 29, 2015, however, the State filed a response which did not acknowledge this

Court’s previous order allowing Shotwell to refile his Rule 3.801(a) motion.1

1 That response was filed by the State Attorney’s Office (the “SAO”), not the
Attorney General’s Office (the “AGO”). In this appeal, the AGO properly
conceded that the SAO’s response failed to correctly advise the trial court of this
Court’s order.

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 Instead, in its response, the State asserted that Shotwell’s claim was barred for

 having been raised in previous motions. Additionally, the State argued that the

 judgment and sentence showed “that the defendant was to receive no credit for the

 time he had previously served.”

       On July 29, 2015, the trial court again entered an order denying Shotwell’s

amended motion for correction of jail credit. In this written order, the trial court

found that Shotwell had previously appealed the trial court’s order denying his

motion for correction of jail credit. The trial court further found that the trial

court’s previous “denial was affirmed” by this Court in Case Number 3D14-3127.

This current appeal ensued.

II.    ANALYSIS

       Pursuant to Rule 3.801(a), Fla. R. Crim. P., “[a] court may correct a

 sentence that fails to allow a defendant credit for all of the time he or she spent in

 the county jail before sentencing as provided in section 921.161, Florida Statutes.”

 A motion filed under Rule 3.801 shall be under oath and include:

              (1) a brief statement of the facts relied on in support of
              the motion;
              (2) the dates, location of incarceration and total time for
              credit already provided;
              (3) the dates, location of incarceration and total time for
              credit the defendant contends was not properly awarded;
              (4) whether any other criminal charges were pending at
              the time of the incarceration noted in subdivision (c)(3),
              and if so, the location, case number and resolution of the
              charges; and

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             (5) whether the defendant waived any county jail credit at
             the time of sentencing, and if so, the number of days
             waived.

See Fla. R. Crim. P. 3.801(c).

      Shotwell’s motion, although sworn, was facially insufficient as he failed to

allege, pursuant to Rule 3.801(c)(4), “whether any other criminal charges were

pending at the time of the incarceration noted in subdivision (c)(3), and if so, the

location, case number and resolution of the charges.”

       Assuming that on remand Shotwell files a facially sufficient motion, and to

avoid any further confusion on remand, we address Shotwell’s argument that the

trial court erred in finding that he waived credit pursuant to a plea.   In finding that

Shotwell waived credit pursuant to a plea, the trial court attached only the

sentencing order. Because the sentencing order does not indicate a specific and

voluntary waiver, it is insufficient to show whether Shotwell voluntarily waived

credit and therefore does not conclusively refute Shotwell’s claim. See Maldonado

v. State, 145 So. 3d 913, 915 (Fla. 2d DCA 2014) (stating that “a waiver of jail

time credit must be specific, voluntary, and clear from the face of the record”);

Pippins v. State, 147 So. 3d 665 (Fla. 5th DCA 2014) (reversing trial court’s order

and remanding for evidentiary hearing or attachment of additional portions of

record because written plea form did not expressly provide that defendant had




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waived additional jail credit and defendant alleged in motion that she had not

waived additional credit).

      On remand, the post-conviction court shall issue a written order providing

Shotwell ninety days to file a facially sufficient motion under Rule 3.801. See Fla.

R. Crim. P. 3.801(e), 3.850(f)(2).2

      Reversed and remanded with instructions.




2 Because Shotwell has been released from prison and is currently on probation, the
State asks this Court to deem the appeal moot. We decline the invitation because
the jail credit issue may arise in the future in the event of a revocation of probation
and Shotwell is entitled to a ruling on the merits upon the filing of a facially
sufficient motion.

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