DANIEL R. FELLMAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant Fellman appealed the denial of his Rule 8.850 motion challenging an illegal sentence. The court held that the trial court failed to properly credit time served on probation and community control, resulting in a total sentence exceeding the statutory five-year maximum, which divested the court of jurisdiction.
The trial court lacked jurisdiction to impose the final sentence because when probation was reimposed after the second violation, the total period of supervision could not exceed five years. Appellant had already served the statutory maximum approximately one month before the third affidavit was filed, divesting the trial court of jurisdiction.
[1] When calculating the amount of probation served, time spent awaiting resolution of violation affidavits must be included.
[2] Periods previously served on probation or community control must be considered when probation is reimposed after a revocation.
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Join FLexlaw to unlock all legal intelligence“appellant was on probation until an order of revocation was entered. Therefore, in calculating the amount of probation served, the time appellant was awaiting resolution of the affidavits of violation must be included.”
Establishes that time awaiting resolution of violation affidavits counts toward probation time served
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Join FLexlaw to unlock all legal intelligenceFellman was placed on probation for five years on February 9, 1990. After successfully completing almost three years, he was arrested on affidavits of…
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W. SHARP, Judge.
This is an appeal of the summary denial of a Rule 8.850 motion. Appellant claims that the trial court failed to properly award credit for the successful completion of community control and probation, resulting in a total penalty exceeding the statutory maximum of five years. We agree.
Appellant was placed on probation for five years on February 9, 1990.
On February 3, 1993, after appellant had successfully completed almost three years of probation, an affidavit of violation was filed, and appellant was arrested.
On April 8, 1993, he pled guilty to the violation and the trial court imposed one year of community control and one year of probation.
On March 22,1994, a second affidavit of violation was filed and appellant was arrested.
On July 22, 1994, the trial court reimposed a term of two years probation.
Finally on March 29, 1995, a third affidavit of violation was filed, followed two months later by a fourth and fifth affidavit and on September 21, 1995, after appellant pled guilty, the trial court sentenced him to three years incarceration, with credit for 327 days. That sentence is illegal because the appellant had served the statutory maximum term prior to the filing of the third affidavit.
First, as we stated in Gordon v. State, 649 So. 2d 326 (Fla. 5th DCA 1995), appellant was on probation until an order of revocation was entered.
Therefore, in calculating the amount of probation served, the time appellant was awaiting resolution of the affidavits of violation must be included. Appellant is also entitled to have the periods previously served on probation or community control considered when probation is reimposed after a revocation. See Ogden v. State, 605 So. 2d 155 (Fla. 5th DCA 1992); Kolovrat v. State, 574 So. 2d 294 (Fla. 5th DCA 1991).
Thus, when probation was reimposed after the second violation, the total term of supervision, including jail time, could not exceed the statutory maximum of five years. It did. If those periods are added together, appellant had served the statutory maximum a month before the third affidavit was filed. At that point, the trial court’s jurisdiction had expired and the third affidavit should have been dismissed. See State v. Hall, 641 So. 2d 403 (Fla.1994).
Accordingly, the order denying post-conviction relief is reversed and the appellant is hereby ordered released and discharged. No motion for rehearing will be entertained, and the mandate shall issue forthwith.
REVERSED.
PETERSON, C.J., and ANTOON, J., concur.
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Francois v. State, 695 So. 2d 695 (Fla. 1997)…SHAW, Justice. We have for review Francois v. State, 676 So. 2d 1041 (Fla. 3d DCA 1996), in which the district court certified conflict with the opinions in Hughes v. State, 667 So. 2d 910 (Fla. 4th DCA 1996); Fellman v. State, 673 So. 2d 155 (Fla. 5th DCA 1996); Marchessault v. State, 659 So. 2d 1315 (Fla. 4th DCA 1995); Gordon v. State, 649 So. 2d 326 (Fla. 5th DCA 1995); and Kolovrat v. State, 574 So. 2d 294 (Fla. 5th DCA 1991). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. We…
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Francois v. State, 676 So. 2d 1041 (Fla. 3d DCA 1996)…17, 1994. Consequently, under defendant’s reasoning, the trial court lost jurisdiction over the defendant on April 17, 1994, and had no jurisdiction to entertain the June 1994 or June 1995 affidavits of violation of probation. See Fellman v. State, 673 So. 2d 155 (Fla. 5th DCA 1996). She contends, therefore, that the 1995 revocation order now under review must be reversed. We disagree with the defendant’s method of computing time. In our view the defendant is entitled to credit for time satisfactorily compl…
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Wilson v. State, 698 So. 2d 1380 (Fla. 4th DCA 1997)…g the illegal portion of that term when an affidavit of violation is filed, the affidavit should be dismissed because the trial court’s jurisdiction over the probation expired when the maximum probationary term had been served. See Fellman v. State, 673 So. 2d 155 (Fla. 5th DCA 1996) (reversing denial of rule 3.850 motion on facts essentially same as the instant case). See also Jackson v. State, 654 [*1382] So. 2d 234, 236 (Fla. 4th DCA 1995) (reversing order revoking community control because revocation occu…
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
- State v. Hall, 641 So. 2d 403 (Fla. 1994)
- Kolovrat v. State, 574 So. 2d 294 (Fla. 5th DCA 1991)
- Ogden v. State, 605 So. 2d 155 (Fla. 5th DCA 1992)
- Peterson v. State, 649 So. 2d 326 (Fla. 1st DCA 1995)