STATE OF FLORIDA, APPELLANT,
v.
JOHN JAY SMITH, APPELLEE

Fla. 1st DCA | 1988-05-11
No. 87-399
SHIVERS and JOANOS, JJ., concur.
525 So. 2d 461 Florida District Court of Appeal, First District (1988) Positive Treatment
Cited by 6 cases

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Synopsis

Florida appeals from a sentence for attempted possession of a firearm by a convicted felon, arguing the trial court improperly credited the defendant with jail time served as a condition of probation for an earlier offense. The appellate court reverses, holding that defendants cannot receive credit for probation jail time toward sentences for later crimes.


Holding

A defendant is not entitled to have credited to sentences imposed for later crimes time served as a condition of probation for an earlier crime. Jail-time credit is only available for time actually served in jail prior to trial for the specific charge being sentenced for.


Headnotes

[1] A defendant is not entitled to jail-time credit for time served as a condition of probation for an earlier offense against a sentence imposed for a later offense, even if…

[2] Time served as a condition of probation for an earlier crime cannot be credited to a sentence for a subsequent offense if the jail time was served before the subsequent o…

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Key Quotes

“a defendant is not entitled to have credited to sentences imposed for later crimes time served as a condition of probation for an earlier crime, even if those sentences are concurrent with a sentence for the earlier crime imposed following violation of probation”

Establishes the core holding that probation jail time cannot be credited to later crime sentences

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Facts & Procedural History

In 1985, Smith pled nolo contendere to burglary and grand theft, receiving five years' probation with a special condition to serve 364 days in jail. W…

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Opinion of the Court
MILLS, Judge.

MILLS, Judge.

The state appeals from a sentence of imprisonment for attempted possession of a firearm by a convicted felon. It contends the trial court erred in awarding the defendant credit for time spent in jail as a condition of probation imposed for an earlier offense. We reverse.

In 1985, John Jay Smith pled nolo conten-dere to burglary of a structure and grand theft. He was placed on probation for five years with the special condition that he serve 364 days in jail. After serving the jail-time, and while still on probation, he was charged with violation of probation. One of the alleged probation violations also resulted in his being charged by information with possession of a firearm by a convicted felon.

Smith entered into a plea agreement whereby he pled nolo contendere to violating probation and to attempted possession of a firearm by a convicted felon. The trial court revoked probation and imposed concurrent sentences of 2¾⅛ years’ imprisonment, within the recommended range of 12-30 months under the guidelines score-sheet approved by the trial court over defense counsel’s objection. At sentencing, the state contended appellant was entitled to jail-time credit on the firearm offense only for the time he spent in jail awaiting disposition of that charge. This would not include, the state argued, the 364 days served by Smith as a special condition of probation. The trial court, however, allowed jail-time credit of 422 days for each concurrent sentence, a figure which included the 364 days.

In Whitney v. State, 493 So. 2d 1077 (Fla. 1st DCA 1986), review denied, 503 So. 2d 328 (Fla.1987), we held, among other things, that a defendant is not entitled to have credited to sentences imposed for later crimes time served as a condition of probation for an earlier crime, even if those sentences are concurrent with a sentence for the earlier crime imposed following violation of probation. Appellee does not attempt to explain why Whitney isn’t controlling, but merely relies on Daniels v. State, 491 So. 2d 543 (Fla.1986). Daniels, however, was specifically distinguished in Whitney as requiring equal jail-time credit for concurrent sentences on multiple charges (as opposed to charges made at different times). Daniels does not conflict with the rule stated in Whitney that a defendant is “only entitled to credit for the time actually served in jail prior to trial for the charge being sentenced for....” 493 So. 2d at 1078. Here, since the jail-time served as a condition of probation was served before the firearm offense was charged and even before it was committed, the defendant was not entitled to have it credited to the sentence for that offense. See also Keene v. State, 500 So. 2d 592 (Fla.2d DCA 1986) (following Whitney).

Appellee makes a curious argument concerning harmless error. Without raising the issue in a cross-appeal, he asserts that the trial court made sentencing guidelines scoring errors which resulted in a de facto •departure sentence. Yet appellee does not ask for reversal of the sentence based on this alleged error. Rather, he suggests the error should be considered for the limited purpose of rendering the jail-credit error harmless. If, however, appellee wished to assert a guidelines scoring error, he could have done so by raising the issue in a cross-appeal. In fact, he may still raise collaterally, pursuant to Florida Rule of Criminal Procedure 3.800, scoring errors apparent from the record. We will not consider the alleged scoring error in the present posture.

REVERSED and REMANDED for re-sentencing.

SHIVERS and JOANOS, JJ., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Davenport v. State, 664 So. 2d 323 (Fla. 1st DCA 1995)
    …erated for the earlier offense underlying the order of probation. On this point Whitney v. State, 493 So. 2d 1077 (Fla. 1st DCA 1986), Keene v. State, 500 So. 2d 592 (Fla. 2d DCA 1986), and many of the cases that cite them, see e.g., State v. Smith, 525 So. 2d 461 (Fla. 1st DCA 1988), are not in conflict with Daniels or Perko.…
  • Copeland v. State, 528 So. 2d 124 (Fla. 1st DCA 1988)
    …PER CURIAM. AFFIRMED. See Whitney v. State, 493 So. 2d 1077 (Fla. 1st DCA 1986) and State v. Smith, 525 So. 2d 461 (Fla. 1st DCA 1988). SMITH, C.J., and WENTWORTH and WIGGINTON, JJ., concur.…
  • McKAY v. State, 618 So. 2d 792 (Fla. 5th DCA 1993)
    …o new substantive offenses because time served on a prior offense is not credited against sentences for new substantive offenses even when they are ordered to run concurrent with the sentence imposed for a violation of probation. See State v. Smith, 525 So. 2d 461 (Fla. 1st DCA 1988). Appellant is entitled, however, to 4V2 years credit against the sentence imposed for the violation of probation on the robbery conviction. Thomas v. State, 612 So. 2d 684 (Fla. 5th DCA 1993); Wilson v. State, 603 So. 2d 93 (Fla.…

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