Burks

We hold that when a defendant agrees to waive custody credits after violating probation, the waived credits may not be recaptured when probation is violated again, unless the agreement expressly reserves that right. In the absence of such a record, custody credits once waived may not be used again.

Lonnie Ray Burks appeals from a judgment sentencing him to two years in state prison following his third violation of probation. Probation was originally granted after Burks pleaded nolo contendere to a felony charge of stalking. Burks served a year in county jail as a condition of the grant of probation. After his first violation, he waived credit for the year he had served and was sentenced to 90 days in county jail. After his second violation, the court reinstated probation without imposing any jail time. Burks now contends he is entitled to the credit for time served that he waived when he was sentenced after his first probation violation. Because the court failed to advise him that his waiver would apply to a future prison term as well as to his county jail time, Burks claims his waiver was not knowing and intelligent. Although this argument is supported by People v.…