SANDY SIMMS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Sandy Simms challenged her probation revocation sentence, claiming she was not given proper credit for time already served. The appellate court reversed and remanded, holding that Simms was entitled to credit for her prior prison time and any earned gain time, as well as credit for her prior probation service when a new probationary term was imposed.
The court held that Simms is entitled to credit for time served in prison plus any earned gain time accrued under the original sentence. Additionally, when probation is revoked and a new probationary term is imposed, the defendant is entitled to credit for any time previously served on probation toward the new sentence. However, time spent on community control does not count as credit toward a probation sentence.
[1] A defendant is entitled to credit for time served in prison against a subsequent sentence imposed upon revocation of probation, even if the prison sentence was for a sepa…
[2] A defendant is entitled to gain time credit for time served on a prison sentence when that sentence is consecutive to a probation term that is later revoked.
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Join FLexlaw to unlock all legal intelligence“The trial court denied defendant credit for the time she had served in prison. We reverse with instructions to the trial court to give defendant credit for that time.”
Establishes the core holding that trial courts must credit time served in prison when sentencing on a probation revocation.
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Join FLexlaw to unlock all legal intelligenceSimms was originally sentenced to three and a half years in state prison on one charge and three years probation on a separate charge related to commu…
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PER CURIAM.
Defendant challenges the sentence imposed upon revocation of probation.
Defendant was sentenced upon violation of community control to three years probation consecutive to a sentence of three and a half years state prison on a separate charge that was before the trial court at the same time. Defendant completed her prison term, but her probation was later revoked whereupon she was sentenced to a period of incarceration followed by probation.
The trial court denied defendant credit for the time she had served in prison. We reverse with instructions to the trial court to give defendant credit for that time. See Tripp v. State, 622 So. 2d 941 (Fla.1993). We further note that she is entitled to receive not only credit for time served but also any earned gain time accrued under the three and a half year sentence pursuant to State v. Green, 547 So. 2d 925 (Fla.1989). We are aware that section 948.06(6), Florida Statutes (Supp.1990) was enacted to counter Green, but her offense was committed before the effective date of the statute. See Bell v. State, 610 So. 2d 737 (Fla. 2d DCA 1993).
We also note that under Summers v. State, 625 So. 2d 876 (Fla. 2d DCA 1993), when a defendant’s probation is revoked and a new probationary term is imposed, as it was in the instant case, the defendant is entitled to credit on the new sentence of probation for any time previously served on probation. We, therefore, instruct the trial court to give the defendant such credit. However, the defendant is not entitled to credit against his probation sentence for any time spent on community control. Williams v. State, 629 So. 2d 174 (Fla.2d DCA 1993).
As in Summers, we certify to the supreme court the following as a question of great public importance:
MUST A TRIAL COURT, UPON REVOCATION OF PROBATION, CREDIT PREVIOUS TIME SERVED ON PROBATION TOWARD ANY NEWLY-IMPOSED TERM OF PROBATION SO THAT THE TOTAL PROBATIONARY TERM IS SUBJECT TO THE STATUTORY MAXIMUM FOR A SINGLE OFFENSE?
Reversed and remanded for proceedings consistent herewith.
FRANK, C.J., DANAHY, J., and LUTEN, CLAIRE K., Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Simms, 642 So. 2d 744 (Fla. 1994)…KOGAN, Justice. We have for review Simms v. State, 627 So. 2d 1189, 1190 (Fla. 2d DCA 1993), in which the district court certified the following question as being of great public importance: MUST A TRIAL COURT, UPON REVOCATION OF PROBATION, CREDIT PREVIOUS TIME SERVED ON PROBATION TOWARD ANY NEWLY-IMPOSED TERM OF…
Authorities Cited
- Tripp v. State, 622 So. 2d 941 (Fla. 1993)
- State v. Green, 547 So. 2d 925 (Fla. 1989)
- Goosby v. State, 625 So. 2d 876 (Fla. 1st DCA 1993)
- Williams v. State, 629 So. 2d 174 (Fla. 2d DCA 1993)
- Hayes v. State, 610 So. 2d 737 (Fla. 2d DCA 1993)
- Bell v. State, 610 So. 2d 737 (Fla. 2d DCA 1993)