Cregan v. State

884 So. 2d 127 (2004)

Sean E. CREGAN, Appellant,
v.
STATE of Florida, Appellee.

No. 4D04-1180.

District Court of Appeal of Florida, Fourth District.

July 7, 2004.

Sean E. Cregan, Raiford, pro se.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Melanie A. Dale, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

Sean Cregan appeals a trial court order summarily denying his rule 3.850 motion for postconviction relief, in which he sought credit for time served at Turning Point Bridge, a drug treatment program. Cregan sought credit for this time against the sentence he faced for violation of community control.

In summarily denying postconviction relief, the trial court found that there was no pretrial detention order issued and no involuntary or coercive deprivation of liberty in this case. The court cited decisions from this court and another concerning claims for credit for house arrest time served, and recognizing that a court may deny credit for jail time served on community control. See Licata v. State, 788 So. 2d 1063 (Fla. 4th DCA 2001); Chancey v. State, 614 So. 2d 18 (Fla. 4th DCA 1993).

Here, the court did not appear to exercise its discretion to deny credit for the Turning Point Bridge drug program. Rather, it appears that the trial court denied credit as a matter of law, and did so summarily, without affording Cregan an evidentiary hearing on the issue of whether the drug program qualified him for credit against his subsequent sentence for violation of community control. We reverse and remand for an evidentiary hearing or record attachments conclusively showing no entitlement to relief on this claim. See Johnson v. State, 830 So. 2d 194 (Fla. 4th DCA 2002)(certifying conflict with Toney v. State, 817 So. 2d 924 (Fla. 2d DCA 2002)); see also Kamerman v. State, 765 So. 2d 63 (Fla. 4th DCA 2000). In addition to certifying conflict with Toney once more, we also certify conflict with Molina v. State, 867 So. 2d 645 (Fla. 3d DCA 2004), which recently adopted Toney.

REVERSED and REMANDED.

POLEN, STEVENSON and GROSS, JJ., concur.