BRUCE JOST, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court vacated the sentence and remanded for resentencing, following prior precedent while certifying a question to the supreme court.
Appellant's sentence was conceded to be illegal under prior decisions. The Second District certified a question to the supreme court regarding credit …
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PER CURIAM.
The state concedes that appellant’s sentence is illegal under our prior decisions1 but has asked that we reconsider. In the meantime, in light of the recent en banc opinions of the Second District in Summers v. State, 625 So. 2d 876 (Fla. 2d DCA 1993), another panel of this court has certified to the supreme court the following question:
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?
Wardell v. State, 631 So. 2d 1130 (Fla. 5th DCA 1994). The Summers opinion ably discusses the competing concerns. Since this matter is now before the supreme court, we follow our prior precedent, but also certify the above-quoted question to our supreme court.
Sentence VACATED; REMANDED for resentencing.
DAUKSCH, COBB and GRIFFIN, JJ., concur. . Ogden v. State, 605 So. 2d 155 (Fla. 5th DCA 1992); Kolovrat v. State, 574 So. 2d 294 (Fla. 5th DCA 1991).
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Eanes v. State, 662 So. 2d 334 (Fla. 1995)…Fla.L.Weekly D2254, 1994 WL 561849 (Fla. 1st DCA October 17, 1994), which the First District Court of Appeal certified as being in conflict with Roundtree v. State, 637 So. 2d 325 (Fla. 4th DCA), approved, 644 So. 2d 1358 (Fla.1994); Jost v. State, 631 So. 2d 1131 (Fla. 5th DCA 1994); and Straughan v. State, 636 So. 2d 845 (Fla. 5th DCA 1994). Eanes v. State, 648 So. 2d 174 (Fla. 1st DCA 1994). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. We recently approved the Fourth District Court of Appeal’s dec…
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Eanes v. State, 648 So. 2d 174 (Fla. 1st DCA 1994)…at probation and community control should be treated the same for purposes of determining whether a sentence exceeds the maximum allowed by law. See Roundtree v. State, 637 So. 2d 325 (Fla. 4th DCA 1994), rev. granted, 649 So. 2d 235; Jost v. State, 631 So. 2d 1131 (Fla. 5th DCA 1994); Straughan v. State, 636 So. 2d 845 (Fla. 5th DCA 1994). Because we have considered the question and decided that community control and probation should not be treated alike, for much the same reason that probation and time in pr…
Authorities Cited
- Kolovrat v. State, 574 So. 2d 294 (Fla. 5th DCA 1991)
- Ogden v. State, 605 So. 2d 155 (Fla. 5th DCA 1992)
- Goosby v. State, 625 So. 2d 876 (Fla. 1st DCA 1993)
- Wardell v. State, 631 So. 2d 1130 (Fla. 5th DCA 1994)