County Criminal Court: CRIMINAL LAW – Probation – Under the applicable older statute, the defendant should have been given credit for time spent on probation up until the time of his resentencing. Order denying defendant’s motion to correct sentence reversed with instructions to grant motion. Toca v. State, No. CRC 06-39 APANO (Fla. 6th Cir.App. Ct. October 26, 2007).

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

 

 

 

JESSE TOCA

 

            Appellant,        

 

                                   

v.                                                                     Appeal No. CRC 06-39 APANO

                                                                        UCN522006AP000039XXXCR

 

 

STATE OF FLORIDA

 

            Appellee.

___________________________/

 

 

Opinion filed ________________.

 

Appeal from an order entered

by the Pinellas County Court

Senior Judge David Seth Walker

 

Jesse Toca, Pro Se

 

William H. Burgess, III, Esquire

Assistant State Attorney

 

 

ORDER AND OPINION

 

 

            THIS MATTER is before the Court on the defendant, Jesse Toca’s, appeal from an order denying his motion to correct the sentence imposed after his probation was revoked. The defendant claims that he was not awarded all of the credit to which he was entitled. After reviewing the briefs and record, this Court agrees with the defendant.

            The defendant was convicted of the unauthorized practice of law and sentenced to a series of probation terms in 1998. He began one of those terms of probation on April 1, 2005, but violated his probation in August of 2005 and was sentenced to more probation on March 29, 2006. He was awarded credit for the time he spent on probation from April to August, but claims he should have been awarded credit for the time he spent on probation from April 1, 2005 to March 29, 2006. The defendant is correct. See Horton v. State, 700 So.2d 376 (Fla. 1997); Francois v. State, 695 So.2d 695 (Fla. 1997).

            The State’s response is not persuasive. It argues that a statute, §948.06(1)(d), tolls the probationary period until the court rules on the alleged violation. That statute, however, is not applicable to this matter. In the case at bar the defendant was placed on probation in 1998, and the tolling provision in §948.06(1)(d) was not enacted until 2001. As pointed out by the defendant, to allow the tolling provision to be applied retroactively to him would be contrary to the law in that it would violate the constitutional prohibition against ex post facto laws. See Frye v. State, 885 So.2d 419 (Fla. 1st DCA 2004).

            IT IS THEREFORE ORDERED that the order denying the defendant’s motion to correct sentence is reversed, and this case is remanded to the trial court with instructions that the defendant’s motion be granted and he be given credit for the 362 days he served


on probation from April 1, 2005 through March 29, 2006.

            DONE AND ORDERED in Clearwater, Florida this _____ day of October, 2007.

 

 

 

                                                                        ______________________________

                                                                                          Linda R. Allan

                                                                                       Circuit Court Judge

 

 

 

                                                                        _______________________________

                                                                                          R. Timothy Peters 

                                                                                         Circuit Court Judge

 

 

 

                                                                        ________________________________

                                                                                           John A. Schaefer

                                                                                          Circuit Court Judge

cc:        Jesse Toca

 

            Office of the State Attorney

 

            Honorable Senior Judge Walker