COLEMAN JEROME SMITH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a trial court cannot forfeit gain time earned on the incarcerative portion of a defendant's sentence when imposing a new sentence for a probation violation, especially when the underlying offense predates a statutory change. This error is not harmless even if the new sentence is longer.
No, a trial court cannot forfeit gain time earned on the incarcerative portion of a defendant's original sentence when imposing a new sentence for a probation violation. This is especially true when the underlying offense occurred before the effective date of a statutory change that might otherwise allow such forfeiture.
[1] A trial court cannot forfeit gain time earned on the incarcerative portion of a defendant's probationary split sentence when imposing new sentences after a probation viol…
[2] The rule prohibiting forfeiture of gain time on probationary split sentences applies when the underlying offense occurred prior to the effective date of section 948.06(6)…
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Join FLexlaw to unlock all legal intelligence“In imposing two concurrent sentences after the defendant had violated probation, the trial court, in effect, forfeited gain time earned on the incarcerative portion of the defendant’s original two concurrent probationary split sentences. This cannot be done.”
Establishes the core issue and the court's initial finding that the trial court's action was impermissible.
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Join FLexlaw to unlock all legal intelligenceThe defendant violated probation after being placed on split sentences. The trial court imposed new concurrent sentences for the violation, effectivel…
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PER CURIAM.
In imposing two concurrent sentences after the defendant had violated probation, the trial court, in effect, forfeited gain time earned on the incarcerative portion of the defendant’s original two concurrent probationary split sentences. This cannot be done. See State v. Green, 547 So. 2d 925 (Fla.1989). Green applies, notwithstanding section 948.06(6), Florida Statutes, (Ch. 89-526, § 8, Laws of Florida, effective September 1, 1990), because the original underlying offense occurred on February 6, 1989, prior to the effective date of the statutory change on September 1, 1990. See Thomas v. State, 605 So. 2d 1286 (Fla. 4th DCA 1992); Harrington v. State, 609 So. 2d 712 (Fla. 4th DCA 1992). See also, Ferguson v. State, 594 So. 2d 864, 866 n. 6 (Fla. 5th DCA 1992) where the court applied Green when the underlying offense was committed prior to the effective date of the statute and the violation of probation occurred after the effective date.
This sentencing error was not rendered harmless merely because the defendant was sentenced concurrently to a greater sentence on the new offense which violated his probation. First, the harmless error statute, section 924.33, Florida Statutes, applies to judgments and not sentences and, secondly, the conviction of the later greater offense could be itself defective and subject to reversal or vacation.1
The defendant’s two concurrent sentences are vacated and the cause remanded for resentencing without forfeiture of gain time credit.
SENTENCES VACATED; CAUSE REMANDED.
COWART, PETERSON and GRIFFIN, JJ., concur. . Compare the "Concurrent Sentence Doctrine” adopted by Jacobs v. State, 389 So. 2d 1054 (Fla. 3d DCA 1980) where a court need not consider alleged errors in "lesser” concurrent convictions and sentences when a "greater" concurrent conviction and sentence has been affirmed on appeal. See also Emanuel, The Concurrent Sentence Doctrine Dies A Quiet Death — Or Are The Reports Greatly Exaggerated, 16 Fla.St.L.Rev. 269 (1988).
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L.C. Bradley v. State, 631 So. 2d 1096 (Fla. 1994)…[*1097] GRIMES, Justice. We review Bradley v. State, 616 So. 2d 1156 (Fla. 2d DCA 1993), because of conflict with Thomas v. State, 605 So. 2d 1286 (Fla. 4th DCA 1992), Ferguson v. State, 594 So. 2d 864 (Fla. 5th DCA 1992), and Smith v. State, 613 So. 2d 603 (Fla. 5th DCA 1993). Our jurisdiction derives from article V, section 3(b)(3) of the Florida Constitution. Bradley pled guilty to two robberies which occurred on December 15, 1989, and was given concurrent sentences of seven years in prison to be f…1 / 2
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Loring Spencer Jones v. State, 635 So. 2d 41 (Fla. 1st DCA 1994)…. 89-104.) According to the plea agreement, he received a concurrent 7 year sentence in Case No. 92-547. The existence of this longer sentence does not conclude the matter of appropriate credit for the other concurrent sentences, see Smith v. State, 613 So. 2d 603 (Fla. 5th DCA 1993). Appellant filed his sworn Motion for Correction of Illegal Sentence, alleging, among other things, that upon sentencing for violation of probation in Case Nos. 89-62 and 89-104 pursuant to the above plea agreement, he did not r…
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Rosetta Slater Jackson and Frank Steven Davis v. State, 619 So. 2d 431 (Fla. 1st DCA 1993)…t to section 948.06, Florida Statutes (Supp.1990), gave the trial court discretion not to award such gaintime, appellant’s prior offense was committed before the effective date of the amendments, and thus the amendments do not apply. Smith v. State, 613 So. 2d 603 (Fla. 5th DCA 1993); Harrington v. State, 609 So. 2d 712 (Fla. 4th DCA 1992). Accordingly, we vacate the sentence in case number 89-4483 and remand for resentencing. ZEHMER, ALLEN and WEBSTER, JJ., concur.…
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
- State v. Green, 547 So. 2d 925 (Fla. 1989)
- Richard A. Bolt, M.D. v. Smith, 594 So. 2d 864 (Fla. 5th DCA 1992)
- Bart Jacobs v. State, 389 So. 2d 1054 (Fla. 3d DCA 1980)
- L.V. Thomas v. State, 605 So. 2d 1286 (Fla. 4th DCA 1992)
- Harrington v. State, 609 So. 2d 712 (Fla. 4th DCA 1992)
- Indian River Cnty. v. Indian River W., Inc., 609 So. 2d 712 (Fla. 4th DCA 1992)