EDDIE WILLIAM BROWN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court erred in resentencing the appellant after probation revocation by exceeding the limitations imposed by the sentencing guidelines and the original split sentence term.
[1] Upon revocation of probation following a true split sentence, a defendant's resentencing is limited by the total term of the original split sentence and the sentencing gu…
[2] When a defendant serving a split sentence is released early from incarceration due to gain time, that gain time vests and must be credited as jail time upon subsequent pr…
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Join FLexlaw to unlock all legal intelligenceAppellant was convicted of robbery and received a split sentence. After violating probation, the court imposed a new split sentence that exceeded the …
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PER CURIAM.
Appellant was convicted of robbery in 1986 and received a “true” split sentence: Tk years incarceration suspended after 5V2 years with probation to completion of the sentence. Upon release, appellant violated probation. The court revoked probation and imposed a new “true” split sentence: 15 years incarceration suspended after 7 years with defendant then placed on probation.
Appellant correctly argues that the trial court erred in sentencing him to 15 years after probation was revoked. Because appellant initially received a true split sentence totalling 7¾⅛ years, upon re-sentencing after a violation of probation the court had to recognize two limitations: the one cell bump-up in the sentencing guidelines and the total term of the original split sentence. See Poore v. State, 531 So. 2d 161 (Fla.1988); Johnson v. State, 557 So. 2d 203 (Fla. 5th DCA 1990).
When defendant was initially sentenced for the robbery conviction in 1986, his guidelines scoresheet placed him in the recommended range of 4½ to 5¥2 years incarceration. With the one cell bump-up for violation of probation, defendant’s recommended range was increased to 5V2 to 7 years incarceration. Therefore, the trial court should have sentenced defendant to 7 years incarceration with credit for the time previously served.
Defendant also correctly notes that he did not receive proper jail time credit. After probation was revoked, defendant was given jail time, credit of 675 days, which presumably represents the time that was actually served by defendant. The supreme court has held that if a defendant serving a split sentence is released early from incarceration because of gain time, the gain time in effect becomes a vested interest and if probation is later revoked, jail time credit should be given for the entire incarcerative portion of the split sentence. See State v. Green, 547 So. 2d 925 (Fla.1989). Appellant should have received credit for 5½ years.
Appellant’s remaining points on appeal are without merit.
SENTENCE VACATED and REMANDED FOR RESENTENCING.
HARRIS, PETERSON and GRIFFIN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Furlow v. State, 579 So. 2d 910 (Fla. 1991)…he will be entitled to full credit against his sentence for proper gain time earned. State v. Green, 547 So. 2d 925 (Fla.1989); Johnson v. State, 574 So. 2d 222 (Fla. 5th DCA 1991); Hill v. State, 565 So. 2d 919 (Fla. 5th DCA 1990); Brown v. State, 565 So. 2d 904 (Fla. 5th DCA 1990); Little v. State, 561 So. 2d 442 (Fla. 5th DCA 1990); McLaughlin v. State, 558 So. 2d 1101 (Fla. 5th DCA 1990); Tillman v. State, 552 So. 2d 1187 (Fla. 5th DCA 1989); Kelly v. State, 552 So. 2d 1140 (Fla. 5th DCA 1989); Johnson v…
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Ferguson v. State, 594 So. 2d 864 (Fla. 5th DCA 1992)…cing for a violation of probation, the trial court must give the defendant credit for time served and gain time accrued during any earlier imprisonment underlying the violation of probation. State v. Green, 547 So. 2d 925 (Fla.1989); Brown v. State, 565 So. 2d 904 (Fla. 5th DCA 1990).6 We have no alternative but to quash the modified probation order and remand for resentencing. Ferguson was initially given a “probationary split sentence” pursuant to the Poore alternatives. The prison time was thirty months.…
Authorities Cited
- Poore v. State, 531 So. 2d 161 (Fla. 1988)
- State v. Green, 547 So. 2d 925 (Fla. 1989)
- Lavaughn Boggs v. State, 557 So. 2d 203 (Fla. 2d DCA 1990)
- Johnson v. State, 557 So. 2d 203 (Fla. 5th DCA 1990)