MARK THOMAS WARDELL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a trial court has inherent power to correct clerical errors in judgments and sentences, but cannot extend a probationary term beyond the statutory maximum upon revocation.
The defendant was found in violation of probation for multiple offenses. The trial court corrected a clerical error regarding the degree of one felony…
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PER CURIAM.
We affirm Mark Thomas Wardell’s judgments and sentences in case number 91-1417 below for violation of probation, and we specifically hold that the trial court had the inherent power to correct a clerical error to reflect that Wardell was originally convicted of the second-degree felony of burglary of a dwelling as opposed to the third-degree felony of resisting an officer with violence. See Drumwright v. State, 572 So. 2d 1029 (Fla. 5th DCA 1991). See also Barriner v. State, 627 So. 2d 624 (Fla. 5th DCA 1993).
However, we must vacate the trial court’s order which placed Wardell on probation for an additional five years for the third-degree felonies of resisting arrest with violence (case number 91-1204) and burglary of a structure and grand theft (case number 91-1602) following a finding of violation of probation because the total probationary term imposed for each of these offenses exceeds five years. See Ogden v. State, 605 So. 2d 155 (Fla. 5th DCA 1992) (trial court, following a revocation of probation, cannot extend defendant’s total period of probation beyond the statutory maximum of five years for a third-degree felony). Accord Summers v. State, 625 So. 2d 876 (Fla. 2d DCA 1993); Moore v. State, 623 So. 2d 795 (Fla. 1st DCA 1993); Kolovrat v. State, 574 So. 2d 294 (Fla. 5th DCA 1991). We remand case numbers 91-1204 and 91-1602 below for resentencing consistent with Ogden and Kolovrat. Because we view this issue to be a matter of great public importance, however, we certify this issue, as the second district did in Summers:
MUST A TRIAL COURT, UPON REVOCATION OF PROBATION, CREDIT PREVIOUS TIME SERVED ON PROBATION TO ANY NEWLY IMPOSED TERM OF COMMUNITY CONTROL AND PROBATION SO THAT THE TOTAL PERIOD OF COMMUNITY CONTROL AND PROBATION DOES NOT EXCEED THE STATUTORY MAXIMUM FOR A SINGLE OFFENSE?
AFFIRMED in part; REVERSED in part; REMANDED.
DAUKSCH, COBB and DIAMANTIS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Roundtree v. State, 637 So. 2d 325 (Fla. 4th DCA 1994)…led to a credit for the time previously spent on probation because the total time on probation, by combining the probation time served prior to the violation with the subsequent probationary term, exceeds the statutory maximum. See Wardell v. State, 631 So. 2d 1130 (Fla. 5th DCA 1994); Summers v. State, 625 So. 2d 876 (Fla. 2d DCA 1993) (en banc); Giannandrea v. State, 621 So. 2d 582 (Fla. 4th DCA 1993); Ogden v. State, 605 So. 2d 155 (Fla. 5th DCA 1992). Additionally, we can discern no reason for not applying…
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Straughan v. State, 636 So. 2d 845 (Fla. 5th DCA 1994)…ially. I join in the result obtained by Judge Diamantis because of the prior decisions of this court and because the issue will be placed at rest by certifying the question to the supreme court as this court has previously done in Wardell v. State, 631 So. 2d 1130 (Fla. 5th DCA 1994), and as the second district has done in Summers v. State, 625 So. 2d 876 (Fla. 2d DCA 1993). The ease primarily relied upon by Judge Diamantis in reaching his conclusion, Ogden v. State, 605 So. 2d 155 (Fla. 5th DCA 1992), in tu…
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State v. Wardell, 642 So. 2d 745 (Fla. 1994)…KOGAN, Justice. We have for review Wardell v. State, 631 So. 2d 1130, 1131 (Fla. 5th DCA 1994), 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 O…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Kolovrat v. State, 574 So. 2d 294 (Fla. 5th DCA 1991)
- Ogden v. State, 605 So. 2d 155 (Fla. 5th DCA 1992)
- Hutchins v. McCLUNG, 572 So. 2d 1029 (Fla. 5th DCA 1991)
- Goosby v. State, 625 So. 2d 876 (Fla. 1st DCA 1993)
- Moore v. State, 623 So. 2d 795 (Fla. 1st DCA 1993)
- Brown v. State, 627 So. 2d 624 (Fla. 5th DCA 1993)
- Barriner v. State, 627 So. 2d 624 (Fla. 5th DCA 1993)