COLON CAMPBELL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the rationale in Tripp v. State requires that offenses originally scored together on a single score sheet be treated in relation to each other, even after probation violations, entitling the defendant to credit for all time served against sentences imposed after revocation.
[1] When probation is revoked on multiple offenses that were considered together in a single sentencing guidelines scoresheet, credit for time served must be applied to the s…
[2] A trial court must award credit for time served on a prior offense against a sentence imposed after revocation of probation on a subsequent offense, if the probation on t…
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Join FLexlaw to unlock all legal intelligenceColon Campbell's probation was revoked on two separate offenses for which he had received concurrent sentences. The trial court calculated credit for …
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ZEHMER, Chief Judge.
Colon Campbell appeals from concurrent 15-year guidelines sentences imposed on two separate offenses following the revocation of his probation. He argues that the supreme court’s decision in Tripp v. State, 622 So. 2d 941 (Fla.1993), requires reversal and remand to allow credit for all time served on both offenses against the concurrent sentences imposed after revocation of probation. We agree.
Appellant was originally adjudicated guilty on an aggravated battery charge in case number 88-730 and sentenced to prison for a term of 4 years, to be followed by 6 months’ probation. He was released from prison and soon thereafter violated probation during April 1990. His probation was revoked and he was sentenced to serve 6 months in county jail and then have his 6 months’ probation reinstated.
However, soon after his release from jail, Appellant was arrested on November 4, 1990, on new charges filed in case number 90-1087. He was adjudicated guilty of three charges — burglary of a dwelling, trespass after warning, and resisting an officer without violence — and sentenced in that case to 5 years in prison to be followed by 3 years’ probation. In addition, his probation in ease number 88-730 was ordered to be reinstated consecutive to his release from prison on the sentence in case number. 90-1087.
In due course, in November 1992, Appellant was released from prison but again violated conditions of probation in both cases. At the revocation hearing, the trial court referred to a sentencing guidelines score-sheet that listed the several offenses in case number 90-1087 as primary and additional offenses, and the offense in case number 88-730 as a prior offense. The scoresheet reflected a total of 112 points, resulting in a permitted range cell of 3½ to 7 years.
However, the 3-cell bump-up authorized by rule 3.701(d)(14), Florida Rules of Criminal Procedure, based on the preceding three probation violations increased the permitted range to the cell prescribing 7 to 17 years.
Pursuant to this cell, the court imposed concurrent 15-year sentences in each case. Further, the court allowed 4½ years’ credit for time served against the sentence imposed in ease number 88-730, and 5 years’ credit for time served against the sentence imposed in case number 90-1087, leaving 10½ years to be served in the 1988 case and 10 years in the 1990 case.
The court rejected defense counsel’s argument that a total of 9½ years should be applied against the guidelines sentence.
Appellant argues that these circumstances are controlled by the supreme court’s decision in Tripp, and that he is entitled to 9½ years’ credit for time served towards the 15-year guidelines sentence in each case.
In Tripp, the supreme court held that: if a trial court imposes a term of probation on one offense consecutive to a sentence of incarceration on another offense, credit for time served on the first offense must be awarded on the sentence imposed after revocation of probation on the second offense. [Footnote omitted.]
622 So. 2d at 942. In arriving at this holding the supreme court observed:
The purpose of the sentencing guidelines is “to establish a uniform set of standards to guide the sentencing judge in the sentence decision-making process” so as to eliminate unwarranted variation in sentencing. Fla.R.Crim.P. 3.701(b). One guidelines score-sheet must be utilized for all offenses pending before the court for sentencing. Fla.R.Crim.P. 3.701(d)(1). A sentence must be imposed for each separate offense, but the total sentence cannot exceed the permitted range of the applicable guidelines scoresheet unless a written reason is given. Fla.R.Crim.P. 3.701(d)(12). Sentences imposed after revocation of probation must be within the recommended guidelines range and a one-cell bump. Fla.R.Crim.P. 3.701(d)(14).
Id. The supreme court rejected the state’s argument that Tripp was convicted of two separate charges and received two separate sentences, explaining that:
The State, however, ignores the fact that both offenses were factors that were weighed in the original sentencing through the use of a single scoresheet and must continue to be treated in relation to each other, even after a portion of the sentence has been violated.
Id.
Thus, the apparent intent of the guidelines rule is to require a single scoresheet for all offenses pending before the court for sentencing when sentence is imposed in any one of them, and to require that sentences be imposed pursuant to that scoresheet on all pending offenses in relation to each other. While the facts in Tripp are somewhat different from the facts in this case, we conclude that the rationale in Tripp requires reversal. In the instant case, although the record does not establish conclusively that the 1988 and 1990 offenses were originally scored on a single scoresheet at the time of initial sentencing on the 1990 offenses and resentencing on the 1988 offense, clearly they should have been. For this reason, we are persuaded that once these two cases were initially weighed in the original sentencing scheme in 1990, the decision in Tripp requires that they “be treated in relation to each other, even after a portion of the sentence has been violated.” Id.
Therefore, the trial court erred in not giving credit for the total 9½ years’ time served by Appellant against the sentences imposed upon revocation of probation in both cases.
We reverse Appellant’s sentences and remand for resentencing in accordance with ⅛⅛ opinion.
REVERSED and REMANDED.
BARFIELD and KAHN, JJ., concur,
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Haines v. State, 851 So. 2d 831 (Fla. 1st DCA 2003)…on followed by terms of probation and, upon revocation of probation, all sentences were made concurrent. See Burnett v. State, 745 So. 2d 1043, 1043-44 (Fla. 2d DCA 1999); Singer v. State, 679 So. 2d 1274, 1275 (Fla. 2d DCA 1996); Campbell v. State, 631 So. 2d 390, 390-91 (Fla. 1st DCA 1994). There is some indication in the record that appellant may have waived his right to jail and prison credit as part of a plea agreement. However, the record is inadequate to establish conclusively that such a waiver occur…
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Atkinson v. State, 860 So. 2d 982 (Fla. 1st DCA 2003)…concurrently or consecutively. When an appellant is entitled to Tripp credit and receives concurrent sentences upon violation of probation, such an appellant is entitled to concurrent Tripp credit on such concurrent sentences. See Campbell v. State, 631 So. 2d 390, 390-91 (Fla. 1st DCA 1994); Singer v. State, 679 So. 2d 1274, 1275 (Fla. 2d DCA 1996). Therefore, because the appellant was sentenced to concurrent 15 year terms of incarceration on counts two and three, the appellant was also entitled to receive c…
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Hodgdon v. State, 764 So. 2d 872 (Fla. 4th DCA 2000)…a total of forty years in prison with credit for fifteen years time served. We affirm. See Cook v. State, 645 So. 2d 436 (Fla.1994), Tripp v. State, 622 So. 2d 941 (Fla.1993), Bayshore v. State, 651 So. 2d 248 (Fla. 4th DCA 1995), Campbell v. State, 631 So. 2d 390 (Fla. 1st DCA 1994), Thomas v. State, 627 So. 2d 1295 (Fla. 5th DCA 1993). We remand with instructions for the trial court to correct its written violation of probation judgment and sentence so that it reflects appellant’s fifteen-year credit for…
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- Tripp v. State, 622 So. 2d 941 (Fla. 1993)