BILLY GENE BRAGG, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 1st DCA | 1994-10-28
No. 94-180
ALLEN, WEBSTER and DAVIS, JJ., concur.
644 So. 2d 586 Florida District Court of Appeal, First District (1994) Positive Treatment
Cited by 30 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Billy Gene Bragg appealed his probation revocation sentence, arguing the trial court imposed an illegal sentence exceeding the statutory maximum for burglary of a dwelling and entered an erroneous judgment listing the wrong offense. The appellate court found both claims meritorious, vacating the probationary portion of the sentence and remanding for resentencing and correction of a scrivener's error in the judgment.


Holding

The sentence is illegal because the combination of the 8-year probationary term, 4.5-year prison term (including jail credit), and previously served probation time (2 years, 9 months, and 10 days) totals 15 years, 3 months, and 10 days, exceeding the 15-year statutory maximum for second-degree felony burglary of a dwelling. The final judgment's reflection of a conviction for dealing in stolen property is a scrivener's error requiring correction.


Headnotes

[1] A sentence imposed upon revocation of probation, including any probationary term, must not exceed the statutory maximum for the underlying offense.

[2] When imposing a sentence upon revocation of probation that includes a new probationary term, a trial court must credit time previously served on probation if the total sa…

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Key Quotes

“In imposing a sentence following a revocation of probation, the combination of sanctions imposed must not exceed the statutory maximum for the underlying offense. If the trial court includes probation as part of a sentence upon revocation of probation, the trial court must give credit for any time previously served on probation if the new period of probation together with other sanctions (including jail and prison credit) and the time previously served on probation total more than the statutory maximum for the underlying offense.”

Establishes the legal standard for sentencing upon probation revocation and the requirement to give credit for previously served probation time

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Facts & Procedural History

On August 22, 1989, Bragg pled no contest to burglary of a dwelling and received ten years probation with the first 11 months and 29 days in county ja…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Appellant, Billy Gene Bragg, appeals the judgment and sentence entered upon his revocation of probation. Appellant raises three issues as involving error. We find that only two issues have merit, and reverse and remand as to those issues.

Appellant argues that the trial court erred in imposing an illegal sentence because the sentence imposed exceeds the maximum permitted by statute for the underlying felony. On August 22,1989, appellant pled no contest to burglary of a dwelling and was placed on probation for ten years, on the condition that appellant serve the first 11 months and 29 days in the county jail. Appellant’s probation was later revoked and appellant was sentenced to the county jail for one year, followed by probation to expire on August 21, 1999. In October 1993, appellant’s probation was again revoked. Appellant was adjudicated guilty and was sentenced to 4.5 years in prison, with credit for 499 days served, to be followed by eight years probation.

In imposing a sentence following a revocation of probation, the combination of sanctions imposed must not exceed the statutory maximum for the underlying offense. If the trial court includes probation as part of a sentence upon revocation of probation, the trial court must give credit for any time previously served on probation if the new period of probation together with other sanctions (including jail and prison credit) and the time previously served on probation total more than the statutory maximum for the underlying offense.

In the present case, the combination of the probationary term imposed upon revocation of probation (8 years), the prison term (including jail credit) imposed upon revocation of probation (4 years, 6 months), and earlier periods of probation (2 years, 9 months and 10 days) equals 15 years, 3 months, and 10 days. Burglary of a dwelling is a second-degree felony with a maximum term of imprisonment not exceeding 15 years. See section 775.082(3)(e), Florida Statutes (1989); section 810.02(3), Florida Statutes (1989). Thus, the sentence imposed exceeds the maximum statutory term of 15 years by 3 months and 10 days.

Because the trial court failed to give credit for the time appellant previously served on probation, we hold that appellant’s sentence is illegal, and vacate the probationary portion of appellant’s sentence. If, on remand, the trial court reimposes probation, the term of probation must not exceed 7 years, 8 months and 20 days, unless appellant is given credit for the time he previously served on probation.

Appellant argues that the trial court entered an erroneous judgment. Appellant asserts that the final judgment erroneously reflects a conviction for dealing in stolen property, rather than burglary of a dwelling. The state concedes that the final judgment erroneously reflects a conviction for dealing in stolen property, and that the case must be remanded for correction of this scrivener’s error. Accordingly, we reverse and remand for resentencing and for correction of the scrivener’s error in the final judgment. We affirm the judgment and sentence in all other respects.

ALLEN, WEBSTER and DAVIS, JJ., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By (15 total)

  • Waters v. State, 662 So. 2d 332 (Fla. 1995)
    …ollowed by ten years of probation. See Poore v. State, 531 So. 2d 161 (Fla.1988). Thus, we must decide whether the reasoning of Summers and Roundtree should apply on these facts. We find the First District’s handling of the issue in Bragg v. State, 644 So. 2d 586 (Fla. 1st DCA 1994), persuasive. In that case, Bragg pled no contest to burglary of a dwelling and was placed on probation. Bragg’s probation was revoked twice after a portion of the two terms of probation plus a one-year jail term had been complete…
  • Gardner v. State, 656 So. 2d 933 (Fla. 1st DCA 1995)
    …oundtree and Summers, credit must be given for all time previously served on probation and community control, as well as all time served in prison or jail. If the court opts to impose incarceration together with probation, then under Bragg v. State, 644 So. 2d 586 (Fla. 1st DCA 1994), because a probationary term is involved, credit must be given for all time served in prison and/or jail and probation. Application of Roundtree to Bragg would result in credit being required for all time spent on community contr…
  • Meader v. State, 665 So. 2d 344 (Fla. 4th DCA 1995)
    …ew period of probation together with other sanctions (including jail and prison credit) and the time previously served on probation total more than the statutory maximum for the underlying offense. Waters, 662 So. 2d at 333, quoting Bragg v. State, 644 So. 2d 586 (Fla. 1st DCA 1994). In this case, the total period of community control and probation already served, together with the new split sentence of imprisonment and probation, exceed the five year maximum for a third degree felony. Pursuant to Waters, Ap…

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