NOT FINAL UNTIL TIME EXPI RES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT STATE OF FLORIDA, ) ) Appellant, ) ) v. ) Case No. 2D14-2146 ) ROXANA A. PATINO, ) ) Appellee. ) ) Opinion filed February 17, 2016. Appeal from the Circuit Court for Hillsborough County; Samantha L. Ward, Judge. Pamela Jo Bondi, Attorney General, Tallahassee, and Christina Zuccaro, Assistant Attorney General, Tampa, for Appellant. Kim Suzanne Seace of Kim Seace, P.A., Tampa, for Appellee.

PER CURIAM. Roxana Patino entered an open guilty plea to DUI manslaughter and DUI with property damage. On the DU I manslaughter conviction, the trial court sentenced her to the statutory mandatory minimum term of four years in pr ison pursuant to section 316.193(3)(c)(3), Florida Statutes (2012), to be followed by el even years of probation. The trial court awarded Patino 540 days of jail credit. On the DUI with property damage- 2 - conviction, the trial court sentenced Patino to time served. T he State appeals Patino's sentence, arguing that the jail credit award was improper. See Fla. R. App. P. 9.140(c)(1)(M). Following her arrest on the DUI charges, Patino spent two day s in county jail. She was then released on bond. As conditions of her bon d she was required to wear a GPS monitor and to remain at home unless she was at work , medical appointments, or meetings with her attorney. Patino was permit ted to drive for work purposes. Patino wore the GPS monitor as part of her home dete ntion for 538 days. Both before and after the trial court accepted her plea, Pati no, the State, and the trial court discussed the issue of jail credit. Patino asked the trial court to award her 540 days of jail credit, to be applied to her four-year man datory minimum prison sentence. She claimed entitlement to the two days she spent in jail and to the 538 days she wore the GPS monitor while released on bond, pursuant to se ction 921.161(1), Florida Statutes (2012). Relying on Turner v. State, 32 So. 3d 86 (Fla. 2d DCA 2009), the trial court granted Patino's request for 540 days of jail credit. Ac knowledging that Patino was "not legally entitled by law" to credit for time on GPS mon itoring, the trial court noted that Turner "holds that it's discretionary for the [c]our t to award that [credit]." Further, and despite finding that Patino was not legally entitl ed to credit, the trial court found that the GPS monitoring in Patino's case "is a coercive d eprivation of liberty as contemplated under Florida Statute 921.161," which mandates cre dit for such deprivation. The State objected to the credit for time spent o n GPS monitoring.- 3 - The trial court erred in both of its findings. The State has framed the legal issues as whether the 538 days of GPS monitoring qualify as jai l credit and whether such an award renders Patino's sentence unlawful and illegal in part. Although it did not expressly allocate the award of jail credit, the trial court co rrectly granted Patino's request for credit for the two days she spent in county jail. See § 921.161(1). The trial court erred, however, in granting Patino 538 days of credit for the time she was subject to GPS monitoring. Section 921.161(1) requires credit for time served "in any institution serving as the functional equivalent of a county jail." State v. Cregan, 908 So. 2d 387, 389 (Fla. 2005) (emphasis omitted) (quoting Tal-Mason v. State, 515 So. 2d 738, 740 (Fla. 1987)). GPS monitored home detention does not hit that m ark. See Sweitzer v. State, 46 So. 3d 1132, 1132-33 (Fla. 1st DCA 2010) (stating tha t the postconviction court correctly denied defendant's motion for jail credit for t ime spent on bond with GPS monitoring and "that a person who remains free while on pretria l release, despite some restrictions, is not entitled to [jail] credit" for that time); McCarthy v. State, 689 So. 2d 1095, 1096 (Fla. 5th DCA 1997) ("A house arrest program in whic h the defendant wears an electronic bracelet used for monitoring his whereabouts . . . imposes restraints on the defendant's liberty prior to trial, but the conditions do n ot impose on the defendant restraints which are so onerous as to be equivalent to incarcer ation in the county jail or the forensic ward of a mental hospital."). Consequently, the t rial court lacked specific authority to award jail credit for the time Patino was subject to GPS monitoring. Because the GPS monitoring was not the "functional equivalent o f a county jail," the credit for the 538 days of such monitoring was unlawful. See S tate v. Brogan, 100 So. 3d 184, 185 (Fla. 4th DCA 2012).- 4 - Further, the trial court erred in finding that our opinion in T urner gave it discretion to award credit for time spent on GPS monitoring. T urner simply reiterates the established rule that "a trial court may not rescind jail c redit previously awarded even if the initial award was improper" and where the State has not appealed the issue. 32 So. 3d at 87 (quoting Lebron v. State, 870 So. 2d 165, 165 ( Fla. 2d DCA 2004)); accord King v. State, 86 So. 3d 1247, 1248 (Fla. 2d DCA 2012). In Turner, the defendant was sentenced at one hear ing, pursuant to a negotiate d plea agreement, in two cases. Although the parties and the trial court agreed tha t Turner had no legal right to credit for time spent on GPS monitoring while on pretrial re lease, the trial court awarded credit for that time in both cases. However, the orall y pronounced jail credit was not reflected on either written sentence. When Turner late r filed a motion to correct illegal sentence, he cited only one of his two cases. The post conviction court granted his motion as to that case and rendered a corrected sentencing document. Some two weeks later, Turner filed a motion in his other case, asserting that he was entitled to jail credit in both cases as this was the sentencing court's intenti on. The postconviction court denied Turner's second moti on. We reversed, concluding t hat the previously awarded and unchallenged jail credit was required to be applied in both cases, even where the initial award of the credit was improper. Within thi s conclusion is the necessary implication that improperly awarded jail credit can a nd must be challenged timely by the State, as is the case here. To conclude otherwis e would negate the usefulness of rule 9.140(c)(1)(M) . Turner simpl y does not stre tch as far as the trial court thought.- 5 - Here, the State has properly appealed an erroneous award of j ail credit which renders Patino's sentence unlawful. See Gardner v. State , 30 So. 3d 629, 633-34 (Fla. 2d DCA 2010) (Altenbernd, J., dissenting) ("[T]he origina l sentence was subject to reversal on appeal by the State . . . ."), majority disapproved by and dissent cited with approval in Dunbar v. State, 89 So. 3d 901 (Fla. 2012). Nothin g in Turner can be read to suggest otherwise. Cf. Dunbar , 89 So. 3d at 906 (stating th at a defendant's sentence is subject to reversal on a well-taken State appeal). Because the time Patino spent on GPS monitoring is not the functional equivalent of jail, that a spect of her sentence is unlawful and must be stricken. The State has not challenged any other aspect of Patino's sen tence. Aside from the 538 days of credit for GPS monitoring, Patino's sentence is legal. Thus, we affirm Patino's sentence but remand for the trial court to s trike the 538 days of GPS monitoring credit. This is a ministerial act and Patino need n ot be present. See Brogan, 100 So. 3d at 186-87. Affirmed; remanded with directions.

LaROSE, BLACK, and SALARIO, JJ., Concur.