Criminal Defense
Since 1993
Since 1993
Arrested Out of County? Don’t Lose Your “Credit for Time Served”
By: John Guidry
Violations of Probation (VOPs) are common here in Orlando (maybe we just have an overactive bunch of probation officers?). Whatever the case may be, these VOPs usually result in an arrest on a no-bond warrant.
When this arrest occurs out of the county in which the VOP was issued, there is always a fight with the judge and prosecutor to get the “credit for time served” due on that out-of-county arrest. If you spent months in jail in one county, shouldn’t that count toward your sentence in the other?
Sitting in an out-of-county jail on a VOP warrant?
Make sure that time counts. Call John today at (407) 423-1117.
The Legal Breakdown: Smith v. State
The issue of credit for time served was the central fight in the Orlando case of Smith v. State, 41 So. 3d 977 (Fla. 5th DCA 2010).
- The Situation: Mr. Smith was on probation in Orange County. He was charged with violating that probation by (1) committing new crimes in Polk County and (2) changing his residence without permission.
- The Arrest: He was arrested in Polk County for the new offenses and held there.
- The Dispute: Smith wanted his time in the Polk County jail to count toward his Orange County VOP sentence. The Orlando judge said “No,” denying him the credit.
The “New Law” Trap Credit for time served on a VOP can be tricky. As a general rule (see Cooper v. State), a defendant is not entitled to credit for time served on a new arrest if the violation is based on both the new arrest AND other technical violations (like changing residence).
The State argued that because Smith violated his probation in multiple ways, he shouldn’t get credit for the time he sat in Polk County.
The Strategy That Saved the Day
Smith’s attorney made a brilliant tactical move. Instead of admitting to all the violations, he had Smith plea only to the new charges. He did not plea to the “change of residence” violation.
Because the revocation of probation was based solely on the new law violation (the very thing he was in jail for in Polk County), the logic changed. The appeals court ruled that he was entitled to credit for the time served from the date of the original arrest on the new charges.
By dropping the technical violation (changing residence) from the plea, the defense removed the State’s excuse for denying credit.
John’s Takeaways
- Details Matter: In VOP cases, it is easy to just say, “I admit it” to get it over with. But admitting to a “technical” violation (like a bad address) along with a “new law” violation can cost you months of jail credit.
- Fight for Every Day: If you are sitting in an out-of-county jail because of an Orange County warrant, that time is your life. We need to ensure the paperwork reflects that so you don’t serve “dead time.”
- Plea Strategy is Key: As Smith shows, limiting what you admit to can legally force the court to give you the credit you deserve.
Don’t Serve Extra Time
If you are facing a VOP involving an arrest in another county, don’t let the system cheat you out of your time served. We need to structure your plea carefully.
Call me at (407) 423-1117. Let’s do the math right.
About John Guidry II
John Guidry II is a seasoned criminal defense attorney and founder of the Law Firm of John P. Guidry II, P.A., located in downtown Orlando next to the Orange County Courthouse, where he has practiced for over 30 years. With more than three decades of experience defending clients throughout Central Florida since 1993, Guidry has successfully defended thousands of cases in Orange, Seminole, Osceola, Brevard, Lake, and Volusia counties. He has built a reputation for his strategic approach to criminal defense, focusing on pretrial motions and case dismissals rather than jury trials.
Guidry earned both his Juris Doctorate and Master of Business Administration from St. Louis University in 1993. He is a member of the Florida Bar and the Florida Association of Criminal Defense Lawyers. His practice encompasses the full spectrum of Florida state criminal charges, with a particular emphasis on achieving favorable outcomes through thorough pretrial preparation and motion practice.
Beyond the courtroom, Guidry is a prolific legal educator who has authored over 400 articles on criminal defense topics. He shares his legal expertise through his popular YouTube channel, Instagram, and TikTok accounts, where he has built a substantial following of people eager to learn about the law. His educational content breaks down complex legal concepts into accessible information for the general public.
When not practicing law, Guidry enjoys tennis and pickleball, and loves to travel. Drawing from his background as a former recording studio owner and music video producer in the Orlando area, he brings a creative perspective to his legal practice and continues to apply his passion for video production to his educational content.