IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
OF THE STATE OF
JESSE TOCA
Appellant,
v. Appeal No. CRC 06-39 APANO
UCN522006AP000039XXXCR
STATE OF
Appellee.
___________________________/
Opinion filed ________________.
Appeal from an order entered
by the
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defendant, Jesse Toca’s, appeal from an order denying his motion to correct the sentence imposed after his probation was revoked.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 (
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 (
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
______________________________
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