          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
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                         No. 1D18-0765
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JOSEPH A. BARBESCO,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
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On appeal from the Circuit Court for Alachua County.
Phillip A. Pena, Judge.

                         February 5, 2019


PER CURIAM.

      Appellant appeals from an order denying in part his motion
for postconviction relief filed pursuant to Florida Rule of
Criminal Procedure 3.801. For the reasons below, we reverse the
denial of his claim for 414 days of credit for time served in county
jail.

    On April 13, 2011, Appellant pleaded no contest to counts of
kidnapping and robbery in case 2010-CF-109. As to Count I, he
was sentenced to a 7-year prison term, to be followed by 3 years
of probation, with 460 days of credit for time served applied
against the sentence. As to Count II, he was sentenced to a
concurrent 5-year prison term, followed by 3 years of probation,
with 460 days of credit for time served. Crucially, the plea
agreement reflected that the credit for time served flowed from
jail time served in case 2010-CF-100. Nevertheless, as stipulated,
Appellant received 460 days of credit for time served as to both
case 2010-CF-109 and case 2010-CF-100.

     During the subsequent probationary period, the State filed
an affidavit of probation violation as to case 2010-CF-109, and
Appellant entered into an open plea. As to both of the above
cases, the lower court accepted Appellant’s plea and revoked his
probation. The lower court resentenced him to a prison term of
120 months, with 1,915 days of credit for time served, to be
followed by 5 years of probation. The jail credit did not include
the 460 days which had previously been awarded per the above
plea agreement. The trial judge reasoned that Appellant was not
legally entitled to the credit as to case 2010-CF-109 because it
was served while he was in custody as to case 2010-CF-100. In
his present rule 3.801 motion, Appellant contended that the trial
court erred in rescinding the 460 days of credit for time served
which had previously been awarded. The postconviction court
granted the motion in part by awarding an additional 45 days,
bringing the total to 1,959 days of credit for time served.
However, the court denied credit as to the other 414 days of the
original total on the ground that those days were only accrued in
case 2010-CF-100, but not case 2010-CF-109.

     Appellant’s claim has merit as to the 414 days of credit he
now seeks. It is well established that a court may not rescind jail
credit, even if it has been awarded in error. See generally
Washington v. State, 199 So. 3d 1110, 1112 (Fla. 1st DCA 2016);
Session v. State, 37 So. 3d 873, 873 (Fla. 1st DCA 2010) (“[T]he
rescission of previously awarded jail credit as an increased
penalty and a violation of the defendant’s [double jeopardy] rights
under the Fifth Amendment of the United States Constitution.”);
Wheeler v. State, 880 So. 2d 1260, 1261 (Fla. 1st DCA 2004)
(“[T]he enhancement of a sentence after its initial imposition
violates the prohibition against double jeopardy.” (quoting Linton
v. State, 702 So. 2d 236, 236-37 (Fla. 2d DCA 1997)).

    Further, jail credit may not be withdrawn upon a
resentencing as a result of a probation violation. See Tomiuk v.
State, 663 So. 2d 681, 681 (Fla. 5th DCA 1995) (“[Section

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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.”); see also Sylvester v. State, 842 So. 2d 977
(Fla. 2d DCA 2003) (reversing rescission of previously awarded
jail credit upon probation violation where the credit had been a
condition of a negotiated plea, despite that the credit had been
miscalculated). Absent an express and specific waiver of jail
credit as a condition of a plea agreement, all such credit must be
awarded at a resentencing upon a probation violation. See
generally Mohammad v. State, 138 So. 3d 1174 (Fla. 3d DCA
2014).

     Accordingly, in this case, it is irrelevant whether Appellant
was legally entitled to the jail credit he now seeks. There is no
dispute that it was previously awarded, and there is no indication
that Appellant waived it as a condition of his plea to violating
probation. See Wheeler, 880 So. 2d at 1261 (“A trial court may
not sua sponte rescind jail credit previously awarded at any time
even if the initial award was improper.”); Washington, 199 So. 3d
1110 at 1112 (same); Lebron v. State, 870 So. 2d 165 (Fla. 2d DCA
2004) (same); see also Mohammad, 138 So. 3d at1175.

    The above authorities provide that since Appellant received
460 days of jail credit as to case 2010-CF-109 at his sentencing on
April 13, 2011, none of that credit could be rescinded by the trial
court upon his resentencing. Thus, as to case 2010-CF-109,
Appellant is entitled to the remaining 414 days of credit for time
served which the trial court erred in declining to award. In
response to this Court’s Toler * order, the State conceded that
Appellant is legally entitled to the jail credit he now seeks. We
therefore remand this case back to the lower court so that
Appellant’s sentence may be amended to reflect his entitlement
to that credit. The order on review is affirmed in all other
respects.

    AFFIRMED in part, REVERSED in part, and REMANDED.

    *   Toler v. State, 493 So. 2d 489 (Fla. 1st DCA 1986).

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B.L. THOMAS, C.J., and BILBREY and JAY, JJ., concur.

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    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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Joseph A. Barbesco, pro se, Appellant.

Ashley B. Moody, Attorney General, and Jennifer J. Moore and
Barbara Debelius, Assistant Attorneys General, Tallahassee, for
Appellee.




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