                                         IN THE DISTRICT COURT OF APPEAL
                                         FIRST DISTRICT, STATE OF FLORIDA

CHRISTOPHER NELSON,                      NOT FINAL UNTIL TIME EXPIRES TO
                                         FILE MOTION FOR REHEARING AND
      Appellant,                         DISPOSITION THEREOF IF FILED

v.                                       CASE NO. 1D14-2789

STATE OF FLORIDA,

      Appellee.

_____________________________/

Opinion filed October 14, 2014.

An appeal from the Circuit Court for Santa Rosa County.
John F. Simon, Jr., Judge.

Christopher Nelson, pro se, Appellant.

Pamela Jo Bondi, Attorney General, and Kristen Bonjour, Assistant Attorney
General, Tallahassee, for Appellee.


PER CURIAM.

      The appellant filed a motion pursuant to Florida Rule of Criminal Procedure

3.801 seeking additional jail credit. For the reasons discussed below, we reverse

and remand.

       The appellant alleged an entitlement to 52 additional days of credit for time

spent in the “ART Program” as a condition of his probation. Specifically, he

asserts that the trial court orally pronounced that he was to be given credit for all
time he spent in the ART program. The trial court ruled that the appellant was

actually awarded more credit that he was entitled to receive, and that he was not

entitled to credit for the 52 days he spent in the ART program because that was a

condition of his probation. See § 948.06(3), Fla. Stat. (2010) (“No part of the time

that the defendant is on probation or in community control shall be considered as

any part of the time that he or she shall be sentenced to serve.”); State v. Cregan,

908 So. 2d 387, 390-91 (Fla. 2005) (holding that “a defendant who violates the

conditions of his community control cannot receive credit against a subsequent

prison sentence for the time he spent in a drug rehabilitation facility”).

      The appellant attached a transcript of his sentencing hearing, which includes

the following exchanges:


      Court:        Do you have any questions to ask either myself or your
                    attorney prior to me accepting your plea?

      Appellant: I just – do I get credit for time served that I’ve been on
                 community control and the ART?

      Court:        You definitely get it for the ART.

      Appellant: I had been there for almost three months. And that’s the
                 month I waited twice.

      Court:        Yeah, you will get credit for all that.

      Appellant: I can get credit for the time served and the month that I
                 was on community control?


                                           2
      Court:        I don’t believe there’s anything that allows me to give
                    you that. And you do admit that you were away from
                    home?

      Appellant: Yes, ma’am.

      Court:        Okay. Then at this time I will find that the plea is freely,
                    voluntarily, knowingly and intelligently made and that
                    there is a factual basis as stipulated to. [Defense
                    Counsel], anything further?

      Counsel:      No, ma’am. You are just indicating you will give him
                    credit for the time he was in ART and the time waiting to
                    go to ART?

      Court:        That is correct. I will give him time for that because he
                    was, in fact, for all intents and purposes, confined.

      Appellant: Yes, ma’am.

      ...

      Court:        Then I will at this time revoke his community control and
                    his probation, adjudicate him guilty on the underlying
                    offenses, sentence him to 45.6 months with credit for the
                    time he served on the case as well as the time he was in
                    ART.
(emphasis added).

      Regardless of whether the appellant is entitled to the credit under pursuant to

the Florida Statutes, he is alleging that the trial court orally awarded credit for time

spent in ART when it stated that he was to receive all jail credit, including credit

for the “time he was in ART.” The oral pronouncement of sentence controls over

the written sentence. See Ashley v. State, 850 So. 2d 1265 (Fla. 2003) (holding

that oral pronouncement of sentence controls over written documents); Johnson v.
                                           3
State, 627 So. 2d 114 (Fla. 1st DCA 1993) (written sentence must comport with

oral pronouncement of jail credit). Accordingly, we reverse and remand for the

trial court to attach documents refuting the appellant’s claim that the trial court

orally pronounced that he was to be given credit for time spent in ART, or to grant

relief.


          REVERSED and REMANDED with directions.

PADOVANO, WETHERELL, and SWANSON, JJ., CONCUR.




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