               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED


                                            IN THE DISTRICT COURT OF APPEAL
                                            OF FLORIDA
                                            SECOND DISTRICT

STATE OF FLORIDA,                           )
                                            )
             Appellant,                     )
                                            )
v.                                          )                 Case No. 2D14-2146
                                            )
ROXANA A. PATINO,                           )
                                            )
             Appellee.                      )
                                            )

Opinion filed February 17, 2016.

Appeal from the Circuit Court for
Hillsborough County; Samantha L. Ward,
Judge.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Christina Zuccaro,
Assistant Attorney General, Tampa, for
Appellant.

Kim Suzanne Seace of Kim Seace, P.A.,
Tampa, for Appellee.


PER CURIAM.

             Roxana Patino entered an open guilty plea to DUI manslaughter and DUI

with property damage. On the DUI manslaughter conviction, the trial court sentenced

her to the statutory mandatory minimum term of four years in prison pursuant to section

316.193(3)(c)(3), Florida Statutes (2012), to be followed by eleven years of probation.

The trial court awarded Patino 540 days of jail credit. On the DUI with property damage
conviction, the trial court sentenced Patino to time served. The State appeals Patino's

sentence, arguing that the jail credit award was improper. See Fla. R. App. P.

9.140(c)(1)(M).

              Following her arrest on the DUI charges, Patino spent two days in county

jail. She was then released on bond. As conditions of her bond she was required to

wear a GPS monitor and to remain at home unless she was at work, medical

appointments, or meetings with her attorney. Patino was permitted to drive for work

purposes. Patino wore the GPS monitor as part of her home detention for 538 days.

              Both before and after the trial court accepted her plea, Patino, the State,

and the trial court discussed the issue of jail credit. Patino asked the trial court to award

her 540 days of jail credit, to be applied to her four-year mandatory minimum prison

sentence. She claimed entitlement to the two days she spent in jail and to the 538 days

she wore the GPS monitor while released on bond, pursuant to section 921.161(1),

Florida Statutes (2012).

              Relying on Turner v. State, 32 So. 3d 86 (Fla. 2d DCA 2009), the trial

court granted Patino's request for 540 days of jail credit. Acknowledging that Patino

was "not legally entitled by law" to credit for time on GPS monitoring, the trial court

noted that Turner "holds that it's discretionary for the [c]ourt to award that [credit]."

Further, and despite finding that Patino was not legally entitled to credit, the trial court

found that the GPS monitoring in Patino's case "is a coercive deprivation of liberty as

contemplated under Florida Statute 921.161," which mandates credit for such

deprivation. The State objected to the credit for time spent on GPS monitoring.




                                             -2-
              The trial court erred in both of its findings. The State has framed the legal

issues as whether the 538 days of GPS monitoring qualify as jail credit and whether

such an award renders Patino's sentence unlawful and illegal in part. Although it did not

expressly allocate the award of jail credit, the trial court correctly granted Patino's

request for credit for the two days she spent in county jail. See § 921.161(1). The trial

court erred, however, in granting Patino 538 days of credit for the time she was subject

to GPS monitoring. Section 921.161(1) requires credit for time served "in any institution

serving as the functional equivalent of a county jail." State v. Cregan, 908 So. 2d 387,

389 (Fla. 2005) (emphasis omitted) (quoting Tal-Mason v. State, 515 So. 2d 738, 740

(Fla. 1987)). GPS monitored home detention does not hit that mark. See Sweitzer v.

State, 46 So. 3d 1132, 1132-33 (Fla. 1st DCA 2010) (stating that the postconviction

court correctly denied defendant's motion for jail credit for time spent on bond with GPS

monitoring and "that a person who remains free while on pretrial release, despite some

restrictions, is not entitled to [jail] credit" for that time); McCarthy v. State, 689 So. 2d

1095, 1096 (Fla. 5th DCA 1997) ("A house arrest program in which the defendant wears

an electronic bracelet used for monitoring his whereabouts . . . imposes restraints on

the defendant's liberty prior to trial, but the conditions do not impose on the defendant

restraints which are so onerous as to be equivalent to incarceration in the county jail or

the forensic ward of a mental hospital."). Consequently, the trial court lacked specific

authority to award jail credit for the time Patino was subject to GPS monitoring.

Because the GPS monitoring was not the "functional equivalent of a county jail," the

credit for the 538 days of such monitoring was unlawful. See State v. Brogan, 100 So.

3d 184, 185 (Fla. 4th DCA 2012).



                                              -3-
              Further, the trial court erred in finding that our opinion in Turner gave it

discretion to award credit for time spent on GPS monitoring. Turner simply reiterates

the established rule that "a trial court may not rescind jail credit previously awarded

even if the initial award was improper" and where the State has not appealed the issue.

32 So. 3d at 87 (quoting Lebron v. State, 870 So. 2d 165, 165 (Fla. 2d DCA 2004));

accord King v. State, 86 So. 3d 1247, 1248 (Fla. 2d DCA 2012). In Turner, the

defendant was sentenced at one hearing, pursuant to a negotiated plea agreement, in

two cases. Although the parties and the trial court agreed that Turner had no legal right

to credit for time spent on GPS monitoring while on pretrial release, the trial court

awarded credit for that time in both cases. However, the orally pronounced jail credit

was not reflected on either written sentence. When Turner later filed a motion to correct

illegal sentence, he cited only one of his two cases. The postconviction court granted

his motion as to that case and rendered a corrected sentencing document. Some two

weeks later, Turner filed a motion in his other case, asserting that he was entitled to jail

credit in both cases as this was the sentencing court's intention. The postconviction

court denied Turner's second motion. We reversed, concluding that the previously

awarded and unchallenged jail credit was required to be applied in both cases, even

where the initial award of the credit was improper. Within this conclusion is the

necessary implication that improperly awarded jail credit can and must be challenged

timely by the State, as is the case here. To conclude otherwise would negate the

usefulness of rule 9.140(c)(1)(M). Turner simply does not stretch as far as the trial court

thought.




                                            -4-
              Here, the State has properly appealed an erroneous award of jail credit

which renders Patino's sentence unlawful. See Gardner v. State, 30 So. 3d 629, 633-34

(Fla. 2d DCA 2010) (Altenbernd, J., dissenting) ("[T]he original sentence was subject to

reversal on appeal by the State . . . ."), majority disapproved by and dissent cited with

approval in Dunbar v. State, 89 So. 3d 901 (Fla. 2012). Nothing in Turner can be read

to suggest otherwise. Cf. Dunbar, 89 So. 3d at 906 (stating that a defendant's sentence

is subject to reversal on a well-taken State appeal). Because the time Patino spent on

GPS monitoring is not the functional equivalent of jail, that aspect of her sentence is

unlawful and must be stricken.

              The State has not challenged any other aspect of Patino's sentence.

Aside from the 538 days of credit for GPS monitoring, Patino's sentence is legal. Thus,

we affirm Patino's sentence but remand for the trial court to strike the 538 days of GPS

monitoring credit. This is a ministerial act and Patino need not be present. See Brogan,

100 So. 3d at 186-87.

              Affirmed; remanded with directions.



LaROSE, BLACK, and SALARIO, JJ., Concur.




                                           -5-
