SIDNEY OLLIE GIBSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Sidney Gibson appealed his convictions for burglary and grand theft, challenging both his sentences and the trial court's failure to award jail-time credit. The First District Court of Appeal affirmed the sentences while striking two invalid grounds for departure from sentencing guidelines, but certified a novel question to the Florida Supreme Court regarding whether committing crimes within fourteen months of prison release constitutes valid grounds for sentencing departure.
The court held that the trial court erred in departing from guidelines on the basis of Gibson's status as a habitual felony offender and public protection grounds, and erred in failing to award jail-time credit on the grand theft charge. However, the court held that committing a new offense within a short period of release could be a valid ground for departure and certified this specific issue (fourteen-month timeframe) to the Florida Supreme Court for determination.
[1] A trial court must award jail-time credit for time served on all concurrent sentences, including those for grand theft accompanying a burglary charge.
[2] A prior record within a short period of time, specifically committing new offenses within fourteen months of release from incarceration, can be a valid ground for departi…
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Join FLexlaw to unlock all legal intelligence“We agree with appellant that the trial court erred in failing to give him 181 days of jail-time credit on the grand theft charge.”
Establishes the court's agreement that procedural error occurred in withholding jail-time credit despite concurrent sentences.
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Join FLexlaw to unlock all legal intelligenceGibson committed two separate criminal incidents: he first burglarized an unoccupied home and stole a pistol, then used that pistol to burglarize anot…
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PER CURIAM.
This cause is before us on appeal of appellant’s convictions on several counts of burglary and grand theft. The charges arose from two separate incidents in which appellant first burglarized an unoccupied home and stole a pistol, and then armed himself with the pistol, burglarized another home, and stole several items. Appellant was sentenced to thirty years for one burglary and ten years for the other, and received ten years for one of the grand theft charges and five years for the remaining two. Although the trial court gave him 181 days’ credit for time served on one of the burglary charges, no credit was given for the accompanying grand theft charge in that case, even though the sentences were concurrent. The thirty-year sentence for the burglary in the first case was consecutive to the ten-year sentence for the burglary in the second case, making appellant’s total sentence forty years’ imprisonment. The thirty-year burglary sentence was in excess of the recommended guidelines range.
The trial court listed three reasons for departure: (1) that appellant was a habitual felony offender, (2) that the sentence was necessary for protection of society, and (3) “prior record within a short period of time.” After reviewing the record, it is clear that the third reason referred to the fact that appellant had been released from prison only fourteen months before committing the offenses sub judice.
We agree with appellant that the trial court erred in failing to give him 181 days of jail-time credit on the grand theft charge. Accordingly, that portion of the sentence is reversed and remanded for correction. We also agree with appellant’s contentions that it was error to sentence him in excess of the guidelines on the basis of reasons one and two. See Whitehead v. State, 498 So. 2d 863 (Fla.1986); and Keys v. State, 500 So. 2d 134 (Fla.1986). However, we disagree that the third reason is invalid. This court has held that committing a new offense within ten months of release is a valid ground for departure. Williams v. State, 484 So. 2d 71 (Fla. 1st DCA 1986), affirmed, 504 So. 2d 392 (Fla. 1987).
Upon review of the record, we are convinced beyond a reasonable doubt that, absent the invalid reasons, the trial court would have rendered the same sentence. Consequently, we affirm the sentences except for the failure to give proper jail-time credit. However, we certify the following question to the Supreme Court of Florida:
WHETHER COMMISSION OF NEW CRIMES WITHIN FOURTEEN MONTHS OF RELEASE FROM INCARCERATION FOR PRIOR OFFENSES IS A VALID GROUND FOR DEPARTURE FROM THE GUIDELINES.
ERVIN and THOMPSON, JJ., and CHARLES E. MINER, Associate Judge, concur.
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Gibson v. State, 553 So. 2d 701 (Fla. 1989)…PER CURIAM. We have for review Gibson v. State, 519 So. 2d 756 (Fla. 1st DCA 1988), which certified the following question: Whether commission of new crimes within fourteen months of release from incarceration for prior offenses is a valid ground for departure from the guidelines. We have jurisdiction. Art V,…
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Frederick v. State, 556 So. 2d 471 (Fla. 1st DCA 1990)…s, we cannot recognize its existence under the law. (We also note that, although Gibson v. State and Jones v. State do not explicitly iterate the pattern requirement, both defendants seem in fact to have been habitual offenders. See Gibson v. State, 519 So. 2d 756 (Fla. 1st DCA 1988)). . We need not decide whether 78 days qualifies . as a sufficiently short period which would invoke this principle if a pattern were also otherwise shown. Compare Gibson v. State, 553 So. 2d 701 (Fla.1989) (14 months too long),…
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Ira J. Harmon v. State, 531 So. 2d 391 (Fla. 1st DCA 1988)…sents an aspect of prior criminal record which is not already factored into [*393] the guidelines scoresheet. This court has found that committing a new offense within 14 months of release from prison supported a departure sentence. Gibson v. State, 519 So. 2d 756 (Fla. 1st DCA 1988).2 Appellant argues that an aggregate 70-year sentence is excessive in light of the recommended guidelines range of nine to twelve years. The record shows that the trial judge erroneously thought any argument on this issue was mo…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Whitehead v. State, 498 So. 2d 863 (Fla. 1986)
- Keys v. State, 500 So. 2d 134 (Fla. 1986)
- Williams v. State, 504 So. 2d 392 (Fla. 1987)
- Williams v. State, 484 So. 2d 71 (Fla. 1st DCA 1986)