NANCY KOCHER, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Nancy Kocher appealed a revocation of community control and restitution order. The court affirmed the revocation and restitution but found error in the resentencing disposition, which failed to credit time already served on community control, and remanded for resentencing.
The court affirmed the revocation of community control and restitution order but found error in the disposition. The trial court must credit time already served on community control when resentencing upon revocation, as the 2-year maximum term of community control per count cannot be exceeded without such credit.
[1] A trial court may impose consecutive terms of community control for separate offenses.
[2] A disposition order upon revocation of community control must grant credit for time previously served on community control.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“It is permissible to impose consecutive terms of 2 years community control for separate offenses.”
Establishes that consecutive community control terms are legally permissible under Crawford v. State
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Join FLexlaw to unlock all legal intelligenceKocher pled guilty to three counts of forgery and one count of grand theft. The trial court initially imposed 30 days incarceration followed by 2 year…
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PER CURIAM.
Nancy Kocher appeals an order of revocation of community control and a restitution order. We find no error in the revocation of community control or in the restitution order. The State concedes that there is error in the disposition imposed on revocation of community control. Defendant originally entered a guilty plea to three counts of forgery (counts 1-3) and one count of grand theft (count 8). The trial court imposed 30 days incarceration, followed by 2 years community control, followed by 18 months probation.
Upon revocation of community control, the trial court imposed two consecutive 2-year terms of community control (counts 1 & 2), followed by two consecutive 3-year terms of probation (counts 3 & 8), resulting in 4 years community control followed by 6 years probation. It is permissible to impose consecutive terms of 2 years community control for separate offenses. Crawford v. State, 567 So. 2d 428, 429 (Fla.1990).
The claimed error is that the new disposition order did not give credit for time already served on community control. Defendant contends that since there is a 2-year maximum term of community control per count, the disposition order exceeds the legal maximum because no credit was given for time already served on community control.
The State’s concession of error on this point is well taken, and the cause is remanded for resentencing. See Mills v. State, 623 So. 2d 840 (Fla. 5th DCA 1993); Ogden v. State, 605 So. 2d 155 (Fla. 5th DCA 1992); Sipp v. State, 604 So. 2d 576 (Fla. 5th DCA 1992); see also Goss v. State, 608 So. 2d 541 (Fla. 3d DCA 1992). See generally State v. Roundtree, 644 So. 2d 1358 (Fla.1994); State v. Summers, 642 So. 2d 742 (Fla.1994). The court may impose any legal sentence.* Affirmed in part, reversed in part, and remanded for resentencing.
*
For example, one option is simply to grant credit for time served on community control. It appears that another possible option is to restructure the sentence by adding another consecutive community control term on count 3 or 8 to offset time already served on community control, thus attaining the court's sentencing objective of four additional years of community control.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Walton v. State, 989 So. 2d 729 (Fla. 4th DCA 2008)…time previously served on community control or probation to be considered when a court imposes a subsequent term of supervision for purposes of calculating the maximum term of supervision the defendant can be required to serve. See Kocher v. State, 651 So. 2d 1288 (Fla. 3d DCA 1995). However, the probation statute expressly forbids a trial court from crediting any of the time a defendant serves on probation or community control towards a prison sentence imposed following revocation. § 948.06(3), Fla. Stat.…
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Bebout v. State, 904 So. 2d 613 (Fla. 4th DCA 2005)…lorida Statutes (2004) provides for a two-year ceiling on a community control sentence. Appellant cites to cases such as McGehee v. State, 688 So. 2d 1008 (Fla. 1st DCA 1997), Cooper v. State, 672 So. 2d 638 (Fla. 5th DCA 1996), and Kocher v. State, 651 So. 2d 1288 (Fla. 3d DCA 1995), which apply section 948.01(4) to hold that even after a revocation of probation, a trial court may not sentence a defendant to more than two years of community control, taking into consideration time served before and after the r…
Authorities Cited
- Carder v. State, 642 So. 2d 742 (Fla. 1994)
- Ogden v. State, 605 So. 2d 155 (Fla. 5th DCA 1992)
- State v. Roundtree, 644 So. 2d 1358 (Fla. 1994)
- Crawford v. State, 567 So. 2d 428 (Fla. 1990)
- Elbert Bernard Sipp v. State, 604 So. 2d 576 (Fla. 5th DCA 1992)
- Goss v. State, 608 So. 2d 541 (Fla. 3d DCA 1992)
- Bennett Smith v. State, 623 So. 2d 840 (Fla. 5th DCA 1993)
- Mills v. State, 623 So. 2d 840 (Fla. 5th DCA 1993)