# Johnson v. State

> Supreme Court of Florida · April 21, 2011 · 60 So. 3d 1045

URL: https://www.frixlaw.com/law-library/cases/4864444

## Case

- **Full name:** Andrea JOHNSON v. STATE of Florida, Respondent Bernard Joyner v. State of Florida
- **Court:** Supreme Court of Florida
- **Decided:** April 21, 2011
- **Citations:** 60 So. 3d 1045; 2011 WL 1496466
- **Precedential status:** Published
- **Opinion:** Concurrence by Pariente
- **Judges:** Canady, Labarga, Lewis, Pariente, Perry, Polston, Quince
- **Cited by:** 162 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4864444

## How later opinions describe it (automated extraction)

- holding that, under Florida Rule of Criminal Procedure 3.800(a), the burden is on the defendant to affirmatively identify those court records which, on their face, demonstrate the existence of an illegal sentence or an entitlement to relief; the State has no burden to establis…
- holding that challenges to plea agreement provisions regarding credit for time served are not cognizable under the rule providing a mechanism for correcting the improper denial of credit for time served, because those challenges present factual questions that cannot be resolve…
- holding that challenges to plea agreement provisions regarding jail credit are not cognizable under the rule providing a mechanism for correcting the improper denial of credit for time served; such challenges must be raised in a motion challenging the voluntariness of the plea
- recognizing that under rule 3.800(a) the burden is on the defendant to demonstrate an entitlement to relief on the face of the record and that, accordingly, the State has no burden to establish that the defendant is not entitled to relief
- stating that to be correctable under rule 3.800(a), the illegality in the sentence must be identifiable from the face of the record, arid the burden is' on the movant to demonstrate an entitlement to relief,from the,face.of the record

## Opinion text

PARIENTE, J.,
concurring.
A defendant is entitled to credit “for all time served” in Florida jails before sentencing. § 921.161(1), Fla. Stat. (2010). Jail credit may be waived, but the waiver must be specific, voluntary, and clear from the face of the record. 3 Therefore, if the defendant did not waive additional credit to time served as a result of a negotiated plea, the claim can be a basis to set aside a plea agreement. However, I agree with the majority that the claim made by the defendant in this case cannot be raised through rule 3.800(a), because the “proper credit for time served” is not demonstrated on the face of the court records.
The question in this case remains whether these defendants affirmatively waived their entitlement to any additional credit for time served when they entered the written plea agreement. There is no evidence of an affirmative waiver in the record. Because the issue of credit for time served is one of the essential aspects of a sentence, I would require in the future that the defendant be explicitly advised of his entitlement to credit for time served and that waiver of any additional credit for time served be explicitly set forth in the plea agreement and the plea colloquy. For example, in White v. State, 995 So.2d 1172, 1174 (Fla. 4th DCA 2008), the Fourth District held that the defendant waived any claim for additional time served because he had entered a negotiated agreement that called for a specific sentence, which contemplated a specific amount of credit for time served. The provision in the plea form in White also contained the following in bold and capital letters: “I AM WAIVING ALL OTHER CREDIT FOR TIME ALREADY SERVED.” Mat 1173.
While not granting relief in this case, the Court has determined that in the future all plea agreements and colloquies specifically address the issue of credit for time served and contain an explicit waiver. The exact form of the colloquy and waiver will be referred to the appropriate rules committee.
QUINCE, J., concurs.
. Unfortunately, the reality is that in the year 2011, to my knowledge, there is no reliable integrated computer system that would ensure that the precise amount of credit for time served would be easily ascertainable to the judge and the parties at the time of the sentencing.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4864444. Public record. Not legal advice.