Comer v. State

Full title: CHARLES JASON COMER, Appellant, v. STATE OF FLORIDA, Appellee

Court: District Court of Appeal of Florida, Fourth District

Date published: Jun 1, 2005

No. 4D04-1010 (Fla. Dist. Ct. App. Jun. 1, 2005)

Opinion

No. 4D04-1010.

June 1, 2005.

Appeal of order denying rule 3.850 motion from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County, Marc A. Cianca, Judge, L.T. Case Nos. 99-4044 CF, 99-4066 CF, 99-4138 CF 99-4139 CF.

Charles Jason Comer, Gainesville, pro se.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

Charles Jason Comer appeals the trial court's summary denial of his rule 3.850 motion seeking jail time credit for 116 days spent in the CARP substance abuse treatment program. Comer had participated in the program as a condition of his suspended sentence, but, having violated community control, he was sentenced to 60 months in prison.

In summarily denying relief, the trial court relied on Nowell v. State, 742 So. 2d 345 (Fla. 5th DCA 1999), and held that because Comer had contracted for the community control rehabilitation, the CARP program did not constitute a coercive deprivation of liberty required to qualify as the functional equivalent of jail.

In Cregan v. State, 884 So. 2d 127, 128 (Fla. 4th DCA 2004), rev. granted 889 So. 2d 72 (Fla. 2005), this court considered an appellant's request for credit against his sentence for violation of community control for time served in a drug treatment program. The trial court summarily denied relief, finding that there was no involuntary or coercive deprivation of liberty in the drug treatment program. Id. This court reversed. While acknowledging that a court may deny credit for jail time served on community control, this court found that the trial court had denied credit not as an exercise of discretion but, rather, as a matter of law without affording Cregan an evidentiary hearing on the issue of whether the drug program qualified him for jail time credit. Id.

Applying Cregan to this case requires us to reverse and remand for an evidentiary hearing or record attachments conclusively showing no entitlement to relief.

Reversed and Remanded.

Gunther, Shahood and HAZOURI, JJ., concur.

Not final until disposition of timely filed motion for rehearing.