Opinion
No. 99-1386.
May 14, 1999.
Appeal from the Circuit Court, Fifteenth Judicial Circuit, Palm Beach County, Edward A. Garrison, Judge.
John Olea of Lubin and Gano, P.A., West Palm Beach, for appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Sarah B. Mayer, Assistant Attorney General, West Palm Beach, for appellee.
Louis C. Beshara filed a rule 3.800(a) motion claiming that he is entitled to approximately 20 days credit for time spent in the county jail prior to sentencing. The trial court denied the motion. We assume the denial was based on the following language in the sentencing order and reverse the order that denied relief:
The Defendant shall not be entitled to prior jail credit and shall not be eligible for work release or house arrest. The Defendant is to serve this incarcerative portion of his probation DAY FOR DAY, without entitlement to gain time.
Section 921.161(1), Florida Statutes (1997), requires that defendants receive credit for all of the time spent in the county jail before sentence. Absent a waiver of such credit, the failure to award jail credit for time served before sentencing constitutes an illegal sentence. See State v. Mancino, 714 So.2d 429 (Fla. 1998); Daily v. State, 1999 WL 212859, ___ So.2d ___ (Fla. 4th DCA April 7, 1999). This court has not been directed to any such waiver in this case. See Silverstein v. State, 654 So.2d 1040, 1041 (Fla. 4th DCA 1995) (waiver of jail time credit must be specific, voluntary, and clearly shown on the record).
On remand the trial court is directed to allow credit on the sentence for the 20 days appellant spent in jail before sentencing. Additionally, the court on remand shall delete the portion of the order precluding appellant from earning gain time as such is the Department of Correction's domain. See Mercade v. State, 698 So.2d 1313 (Fla. 2d DCA 1997).
No motion for rehearing will be entertained by this court. The clerk is directed to issue the mandate simultaneously with this opinion.
KLEIN, SHAHOOD and HAZOURI, JJ., concur.