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I was arrested for DUI and did 35 days in jail because I couldn't post bond. I was sentenced to credit time served and 12 months of reporting probation. Florida DUI statute 316.193 (6)(a) states "...the total period of probation and incarceration may not exceed 1 year." It appears to me that my sentence exceeds the maximum under state law. Should I file to have my probation terminated, or have my sentence modified?
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It is most likely that you received a legal sentence. Usually when a person is given both jail time and a year of probation on a misdemeanor DUI, the judge makes the jail sentence a condition of probation. If the jail is a condition of probation, then it technically is served while the person is on probation. I understand that you served 35 days -- in addition to the year of probation. Despite that, the judge still could have imposed 35 days of jailas a condition of probaiton. That means while on probation you would have to serve 35 days of jail. But the judge must give you credit for any days you were in jail on the charge before being sentenced. So if the judge were to sentence you to 35 days of jail as a condition of probation -- and then give you credit for 35 days that you were in jail before being sentenced, you would not have to serve another 35 days even if it was a condition of your probaiton. That would be a legal sentence.
Answered on May 22nd, 2017 at 11:23 AM