       Third District Court of Appeal
                              State of Florida

                         Opinion filed January 2, 2019.

                              ________________

                               No. 3D18-2019
                        Lower Tribunal No. 07-45456A
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                         Teddie Charles Thomas,
                                  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, Mark Blumstein, Judge.

      Teddie Charles Thomas, in proper person.

     Pamela Jo Bondi, Attorney General, and Sandra Lipman, Assistant Attorney
General, for appellee.


Before EMAS, FERNANDEZ and LOGUE, JJ.

      EMAS, J.
      Teddie Charles Thomas appeals from an order summarily denying his motion

for postconviction relief. In his motion, Thomas alleges: In 2007, he was sentenced

to seven years in prison followed by five years of probation. He was released from

prison in 2015 and began serving the probationary portion of his sentence. He was

arrested in April 2018 for violating his probation and, as a result, was sentenced on

April 17, 2018 to 366 days in state prison, but was awarded only 17 days, an apparent

reflection of credit for time spent in the county jail awaiting his violation of

probation hearing. Thomas asserts that he did not waive the credit for the seven

years previously served in prison, and that the trial court was required to credit that

time against the sentence imposed following the violation of probation.

      The trial court docket does not reflect that the State filed any response to

Thomas’ motion. The trial court summarily denied Thomas’ motion on July 27,

2018. This appeal followed.

      As a general rule, a defendant “sentenced to a probationary split sentence who

violates probation and is resentenced to prison is entitled to credit for all time

actually served in prison prior to his release on probation unless such credit is

waived.” Gonzalez v. State, 194 So. 3d 380, 382 (Fla. 3d DCA 2016) (quoting Dortly

v. State, 197 So. 3d 1229, 1230 (Fla. 1st DCA 2013)). See also Sainvilus v. State,

689 So. 2d 1261, 1261-62 (Fla. 3d DCA 1997) (holding: “A prisoner who is




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sentenced to prison for violating probation… is entitled to credit for time actually

served in prison, prior to commencement of the probationary term”).

      On appeal, the State properly and commendably concedes that the trial court

erred in summarily denying the motion without any record attachments (such as a

transcript of the probation violation hearing or plea colloquy) conclusively refuting

Thomas’ claim that he did not waive his entitlement to credit for the prison time

previously served on his split sentence. See, e.g., Brothers v. State, 959 So. 2d 1260

(Fla. 3d DCA 2007).

      We therefore reverse and remand for the trial court to consider Thomas’ claim

on the merits or to enter a new order with record attachments conclusively refuting

Thomas’ claim that he did not waive his entitlement to credit for prison time

previously served. Because Thomas’ allegations, if true, would appear to entitle him

to immediate release from prison, we direct the trial court to expedite this cause on

remand.




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