JOEY HUNNICUTT, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Appellant, a youthful offender, challenged his nine-year sentence imposed upon revocation of community control for a strong-armed robbery committed when he was seventeen. The court held that youthful offenders cannot be sentenced to more than six years upon revocation of community control, reversing the sentence and remanding for recalculation of the proper release date.
The court held that the maximum sentence imposable upon revocation of community control for a youthful offender is six years, not nine years. The sentence was reversed and the case remanded to determine appellant's proper release date, with appellant entitled to credit for all time served in incarceration prior to revocation and for gaintime.
[1] A youthful offender, when sentenced under chapter 958, Florida Statutes, cannot be sentenced to a term in excess of the maximum penalty established by that chapter upon r…
[2] The alternative provisions of section 958.14, Florida Statutes, as amended in 1985, apply to sentences imposed for offenses committed prior to the effective date of the a…
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Join FLexlaw to unlock all legal intelligence“it is error for the trial court upon revocation of probation or community control to sentence a defendant who, when the offense was committed, was a youthful offender, to a term in excess of the maximum penalty established by chapter 958”
Establishes the controlling legal principle that youthful offenders have maximum sentencing limitations upon revocation of community control
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Join FLexlaw to unlock all legal intelligenceAppellant, age seventeen, pled guilty in November 1984 to strong-armed robbery and was sentenced under the Youthful Offender Act to four years in a yo…
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PER CURIAM.
Appellant, then seventeen years of age, pled guilty in November, 1984 to a charge of strong-armed robbery, § 812.13, Fla. Stat. (1983). He was adjudicated guilty and sentenced under the Youthful Offender Act, chapter 958, Florida Statutes (1983), to four years in a youthful offender facility, followed by two years of community control. In October, 1987, the trial court revoked appellant’s community control upon a finding that appellant had violated certain conditions,1 and sentenced him to a term of nine years imprisonment, with credit for time served.
This court has held in Dixon v. State, 546 So. 2d 1194 (Fla. 3d DCA 1989) (Letts, Assoc. J., dissenting in part); Warren v. State, 542 So. 2d 429 (Fla. 3d DCA 1989) Miles v. State, 536 So. 2d 262 (Fla. 3d DCA 1988); and Hall v. State, 536 So. 2d 268 (Fla. 3d DCA 1988) that it is error for the trial court upon revocation of probation or community control to sentence a defendant who, when the offense was committed, was a youthful offender, to a term in excess of the maximum penalty established by chapter 958. We have also held that the alternative provisions of section 958.14 (as amended in 1985) apply to sentences imposed for offenses committed, as was the instant offense, prior to the effective date of the amended statute. Dixon v. State, 546 So. 2d at 1105-96.2 Also see Franklin v. State, 545 So. 2d 851 (Fla.1989). Accordingly we agree with appellant’s contention that the maximum sentence which could be imposed upon revocation of appellant’s community control was six years. The sentence appealed from is reversed.
Appellant further contends that he has already served that portion of the sentence which the trial court properly imposed. However, we are unable to determine the accuracy of this contention from the record before us. We therefore remand the cause for the trial court to make a determination as to appellant’s proper release date. Appellant is entitled to receive credit for all time served by him in incarceration prior to the revocation of his community control, as well as credit for gaintime, State v. Green, 547 So. 2d 925 (Fla.1989); Dixon, 546 So. 2d at 1198.
Reversed and remanded, with directions.
NESBITT and FERGUSON, JJ., concur. . Appellant does not challenge by this appeal the trial court’s revocation of his community control.
. Section 958.14, Florida Statutes was amended in 1985 to add the underlined language:
A violation or alleged violation of probation or the terms of a community control program shall subject the youthful offender to the provisions of s. 948.06(1). However, no youthful offender shall be committed to the custody of the department for such violation for a period longer than 6 years or for a period longer than the maximum sentence for the offense for which he was found guilty, whichever is less, with credit for time served while incarcerated.
LETTS, GAVIN K., Associate Judge
(specially concurring).
I specially concur because I must in light of the above cited authorities. Nonetheless I continue to be of the same opinion voiced in the Dixon dissent.
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Citator
Cited By
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State v. Watts, 558 So. 2d 994 (Fla. 1990)…rily double jeopardy considerations, it also interpreted section 958.14 in a manner that conflicts with the instant case and with Cole v. State, 550 So. 2d 1129 (Fla. 3d DCA 1989), review granted, No. 74,299 (Fla. Jan. 16, 1990); Hunnicutt v. State, 549 So. 2d 1138 (Fla. 3d DCA 1989), dismissed, 554 So. 2d 1169 (Fla.1989); Kerklin v. State, 548 So. 2d 689 (Fla. 2d DCA 1989); Haynes v. State, 545 So. 2d 949 (Fla. 1st DCA 1989); Dixon v. State, 546 So. 2d 1194 (Fla. 3d DCA 1989) (on rehearing), review granted, N…
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Arnette v. State, 566 So. 2d 1369 (Fla. 5th DCA 1990)…? Several district courts of appeal have held that, post amendment, the maximum sentence a trial court can impose after revocation of a youthful offender’s probation is the six year limitation of section 958.14, Florida Statutes. Hunnicutt v. State, 549 So. 2d 1138 (Fla. 3d DCA 1989), cause dis’m., 554 So. 2d 1169 (Fla.1989); Kerklin v. State, 548 So. 2d 689 (Fla. 4th DCA 1989), juris, accepted, 557 So. 2d 867 (Fla.1990); Dixon v. State, 546 So. 2d 1194 (Fla. 3d DCA 1989), approved, 558 So. 2d 1001 (Fla.1990);…
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Mitchell v. State, 554 So. 2d 572 (Fla. 3d DCA 1989)….R. Crim.P. 3.701(d)(14); reasons relating to the violation of community control may not be used to support any additional departure. Hamilton v. State, 548 So. 2d 234 (Fla.1989); Perez v. State, 554 So. 2d 14 (Fla. 3d DCA 1989); Hunnicutt v. State, 549 So. 2d 1138 (Fla. 3d DCA 1989); Crawford v. State, 549 So. 2d 1145 (Fla. 3d DCA 1989); Hamilton v. State, 547 So. 2d 305 (Fla. 3d DCA 1989); Burg v. State, 550 So. 2d 1192 (Fla. 5th DCA 1989); Kramer v. State, 550 So. 2d 557 (Fla. 5th DCA 1989). Reversed and…
Authorities Cited
- State v. Green, 547 So. 2d 925 (Fla. 1989)
- Franklin v. State, 545 So. 2d 851 (Fla. 1989)
- Calhoun v. State, 546 So. 2d 1194 (Fla. 1st DCA 1989)
- Miles v. State, 536 So. 2d 262 (Fla. 3d DCA 1988)
- Warren v. State, 542 So. 2d 429 (Fla. 3d DCA 1989)
- Am. Reliance Ins. Co. v. Steinfeld, 536 So. 2d 268 (Fla. 3d DCA 1988)
- Hall v. State, 536 So. 2d 268 (Fla. 3d DCA 1988)