MARCUS DUANE BUTLER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A defendant can be resentenced for violating community control even after serving the initial incarcerative portion of the sentence. Credit for time served is only for actual incarceration, not for time on probation or community control.
Appellant pleaded guilty to strong arm robbery and was sentenced as a youthful offender. After release, he violated his community control and was rese…
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ORFINGER, Judge.
After pleading guilty to strong arm robbery, appellant was sentenced as a youthful offender to serve 4 years with the Department of Corrections to be followed by 2 years of community control. After his release from incarceration he violated his community control and was resentenced to a term of 5V2 years’ imprisonment, a guidelines sentence, with credit for time already served.
Appellant raises two issues. Relying on Wayne v. State, 513 So. 2d 689 (Fla. 5th DCA 1987), he says first that he could not be resentenced for violation of community control because he had already served the incarcerative portion of his sentence. We receded from Wayne in Franklin v. State, 526 So. 2d 159 (Fla. 5th DCA 1988), where we pointed out that there was no double jeopardy obstacle to resentencing a defendant for violation of probation or community control which followed a term of incarceration. Violation of probation or community control should be met with appropriate sanctions. The court should not be relegated to the role of a toothless tiger with the ability only to roar when a violation occurs.1
His second contention is that he is entitled to a full 4 years’ credit on his new sentence although he may not have served that full time because of gain time credit. There is no merit to this contention. He is entitled to credit only for the actual time spent in jail or prison. State v. Holmes, 360 So. 2d 380 (Fla.1978); Chaitman v. State, 495 So. 2d 1231 (Fla. 5th DCA 1986). See also Walker v. State, 506 So. 2d 78 (Fla. 1st DCA 1987); Hutchinson v. State, 467 So. 2d 788 (Fla. 2d DCA 1985). He is not entitled to credit for time spent on probation or community control, Holmes, and what he requests would produce that result. Appellant makes no contention that he was not given credit for his actual time in jail or prison, so his sentence is
AFFIRMED.
SHARP, C.J., and COBB, J., concur. . See Riley v. Riley, 509 So. 2d 1366, 1370 (Fla. 5th DCA 1987).
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State v. Green, 547 So. 2d 925 (Fla. 1989)…EHRLICH, Chief Justice. We have for review Green v. State, 539 So. 2d 484 (Fla. 1st DCA 1988) (on rehearing), because of direct conflict with Butler v. State, 530 So. 2d 324 (Fla. 5th DCA), review denied, 539 So. 2d 475 (Fla.1988). We have jurisdiction pursuant to article V, section 3(b)(3), of the Florida Constitution, and approve the decision of the First District Court of Appeal. Green pled nolo contendere to two co…1 / 2
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Mathews v. State, 529 So. 2d 361 (Fla. 2d DCA 1988)…larify or correct his sentence and give him credit for time served while on community control. We do not agree with defendant’s contention on appeal which is to the effect that community control is the functional equivalent of jail. Butler v. State, 530 So. 2d 324 (Fla. 5th DCA 1988). See Braxton v. State, 524 So. 2d 1141 (Fla. 2d DCA 1988) (“[W]e do not equate community control with incarceration.”). Compare Tal-Mason v. State, 515 So. 2d 738, 739 (Fla.1987) (“[C]oercive commitment to a state [mental] instit…
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State v. Arnold, 550 So. 2d 154 (Fla. 5th DCA 1989)…Corrections. . Defendant's contention that he should be given credit for time served on community control is without merit. Braxton v. State, 524 So. 2d 1141 (Fla. 2d DCA 1988); Mathews v. State, 529 So. 2d 361 (Fla. 2d DCA 1988); Butler v. State, 530 So. 2d 324 (Fla. 5th DCA 1988), reversed on other grounds, 547 So. 2d 925 (Fla.1989). See also Interest of B.A., 546 So. 2d 125 (Fla. 1st DCA 1989).…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Holmes, 360 So. 2d 380 (Fla. 1978)
- Franklin v. State, 526 So. 2d 159 (Fla. 5th DCA 1988)
- Riley v. Riley, 509 So. 2d 1366 (Fla. 5th DCA 1987)
- Wayne v. State, 513 So. 2d 689 (Fla. 5th DCA 1987)
- Chaitman v. State, 495 So. 2d 1231 (Fla. 5th DCA 1986)
- Denver Hutchinson v. State, 467 So. 2d 788 (Fla. 2d DCA 1985)
- Walker v. State, 506 So. 2d 78 (Fla. 1st DCA 1987)