JOSEPH FOLEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Joseph Foley appeals the revocation of his probation in three cases and the sentences imposed thereafter, contending the trial court erred in extending his probation beyond statutory maximums. The appellate court affirmed the revocation and grand theft sentence but reversed the probation terms for forgery and uttering a forged instrument, remanding for recalculation to ensure compliance with statutory maximums.
The court affirmed the revocation of probation in all cases and the 5-year prison sentence for grand theft. However, the court reversed the probation terms for forgery and uttering a forged instrument because the trial court failed to account for prior time served on probation when calculating the maximum allowable probation terms, which cannot exceed 5 years total inclusive of prior time served.
[1] A trial court must consider prior time served on probation when imposing new terms of probation.
[2] A term of probation may not exceed the statutory maximum term of incarceration for the underlying offense, inclusive of prior time served on probation or in prison for th…
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Join FLexlaw to unlock all legal intelligence“the trial court was required to take into consideration prior time served on probation when imposing the two new terms of probation. Neither term of probation may exceed 5 years, i.e., the maximum term of incarceration for a third-degree felony, inclusive of prior time served on probation or in prison for that offense.”
Establishes the controlling legal standard that probation terms must account for all prior time served and cannot exceed the statutory maximum for the underlying felony.
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Join FLexlaw to unlock all legal intelligenceOn June 4, 1987, Foley was charged with forgery, grand theft, and uttering a forged instrument (all third-degree felonies). He pleaded guilty on June …
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ALTENBERND, Judge.
Joseph Foley appeals the revocation of his probation in three cases and the sentences imposed thereafter. He contends, among other things, that the trial court erred in extending his probation beyond the statutory maximum. We affirm the revocation of probation in all cases and the sentence imposed for grand theft. For the reasons stated below, we reverse the terms of probation imposed for forgery and uttering a forged instrument and remand for further proceedings.
On June 4, 1987, the state charged Mr. Foley with forgery, grand theft, and uttering a forged instrument, all third-degree felonies. On June 9, 1987, he pleaded guilty to the charges and was placed on three concurrent terms of 8 years’ probation, which terms were consecutive to an unrelated prison sentence. On July 6, 1989, the state charged Mr. Foley with violating probation by committing new offenses. On February 23,1990, he pleaded guilty to the violation and was again placed on three concurrent terms of 3 years’ probation.
On July 24, 1991, Mr. Foley was charged with the violation of probation that resulted in this appeal. On October 17, 1991, the trial court revoked probation and sentenced him to 5 years in prison for grand theft; a consecutive 6-month .term of imprisonment, followed by 4⅜ years’ probation, for uttering a forged instrument; and 5 years’ probation for forgery, to run concurrently with the probationary term imposed for the uttering conviction.
The record contains a seoresheet filed on February 23,1990, that provides for a recommended range of 3½ to 4½ years’ imprisonment. With a one-cell bump for violation of probation, the maximum guidelines sentence would be 5⅛ years. Thus, the two consecutive terms of imprisonment are permissible under the guidelines.
Pursuant to our recent en banc decision in Summers v. State, 625 So. 2d 876 (Fla. 2d DCA 1993), the trial court was required to take into consideration prior time served on probation when imposing the two new terms of probation. Neither term of probation may exceed 5 years, i.e., the maximum term of incarceration for a third-degree felony, inclusive of prior time served on probation or in prison for that offense. It is unclear from this record when the defendant began his initial terms of probation and we cannot calculate the maximum remaining term of probation on either offense. On remand, the trial court must determine the amount of time that the defendant has previously spent on probation or in prison for these offenses and assure that the concurrent terms of probation do riot exceed the legal maximum sentences in light of these considerations.
Mr. Foley has also raised issues regarding the revocation of probation and the term of imprisonment imposed for the grand theft charge. None of these contentions have merit. Thus, we affirm the revocation of probation in all eases and the sentence imposed for grand theft.
Affirmed in part, reversed in part, and remanded for resentencing.
FRANK, C.J., and CAMPBELL, J., concur.
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Jackson v. State, 641 So. 2d 167 (Fla. 2d DCA 1994)…n 944.275, Florida Statutes (1991). See State v. Green, 547 So. 2d 925 (Fla.1989). See also Walters v. State, 630 So. 2d 1234 (Fla. 2d DCA 1994). We also agree that pursuant to Summers v. State, 625 So. 2d 876 (Fla. 2d DCA 1993) and Foley v. State, 630 So. 2d 658 (Fla. 2d DCA 1994), Jackson is entitled to credit in Count I for the time previously spent on probation because the total probationary sentences imposed for Count I exceed the fifteen-year statutory maximum. Although Jackson does not raise this poi…
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White v. State, 641 So. 2d 927 (Fla. 2d DCA 1994)…edit for the original three-year probationary term in Count I because the combined 1991 and 1992 probation sentences did not exceed the fifteen-year statutory maximum for a second-degree felony. See § 775.082(3)(c), Fla.Stat. (1991); Foley v. State, 630 So. 2d 658 (Fla. 2d DCA 1994). Although Mr. White does not challenge the imposition of 364 days in county jail as a condition of community control, the court erred in doing so. With a one-cell bump allowed for revocation of probation, Mr. White’s recommended…
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- Goosby v. State, 625 So. 2d 876 (Fla. 1st DCA 1993)