ANGELO R. DAVIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Angelo Davis appeals an order denying his motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850. The court affirmed the denial of his claims that his probation revocation sentence breached his plea agreement and that counsel was ineffective, but reversed and remanded the issue of jail credit calculation for further proceedings.
The court held that the 12-year post-revocation sentence does not breach the plea agreement because Florida law permits any sentence that could have been originally imposed upon probation revocation. The court found no error requiring counsel to object to the post-revocation sentence. However, the court reversed the summary denial of relief regarding jail credits because Davis made a prima facie claim requiring proper calculation.
[1] A trial court may impose any sentence it could have originally imposed upon a probationer whose probation is properly revoked.
[2] A defendant's violation of probation does not render an original plea agreement involuntary if the post-revocation sentence is within the original sentencing range.
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Join FLexlaw to unlock all legal intelligence“shall adjudge the probationer ... guilty of the offense charged and proven or admitted, unless he has previously been adjudged guilty, and impose any sentence which it might have originally imposed before placing the probationer ... on probation.”
Establishes statutory authority under Florida Statutes section 948.06(1) permitting courts to impose any originally available sentence upon probation revocation
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Join FLexlaw to unlock all legal intelligenceDavis pled no contest to five counts across four cases pursuant to a February 1992 plea agreement providing for 5 years in prison followed by 2 years …
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MICKLE, Judge.
Angelo Davis, the appellant, appeals an order denying .his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm in part, reverse in part, and remand with directions. Pursuant to a February 1992 plea agreement, Davis pled no contest to five counts of various crimes charged in four different eases. It is undisputed that the plea agreement provided for 5 years in prison, to be followed by 2 years of probation. The sentences on the five counts were made concurrent, and the trial court imposed judgment and sentence in accordance with the written plea agreement. After serving his prison sentence, Davis was found to have violated probation, his probation was revoked, and he was sentenced to 12 years in prison.
In Issue I, Davis claims that the sentence imposed upon violation of probation constitutes an impermissible breach of the original plea agreement, thereby rendering his plea involuntary. In other words, Davis argues that despite his own breach of the original plea agreement by violating probation, the trial court, on resentencing, could impose no more than the originally agreed sanctions. This argument is without merit. The law provides for penalties for those offenders who violate probation. In fact, section 948.06(1), Florida Statutes (1991), provides that where probation is properly revoked, as it was here, the trial court
shall adjudge the probationer ... guilty of the offense charged and proven or admitted, unless he has previously been adjudged guilty, and impose any sentence which it might have originally imposed before placing the probationer ... on probation.
The 12-year term of imprisonment falls within the sentencing range that could have been imposed originally. As to Issue II, in which Davis alleges that counsel was ineffective for failing to object to the post-revocation sentence, we find no error to which his attorney should have objected.
In Issue III, Davis alleges that the trial court erred in calculating his allowable jail credits. A post-conviction motion is the proper mechanism for resolving the factual question relating to the number of days’ credit to which a defendant is entitled. Barfield v. State, 671 So. 2d 820 (Fla. 1st DCA 1996) (affirming denial of Rule 3.800 motion, without prejudice to file a timely, proper Rule 3.850 motion alleging denial of credits). In his postconviction motion, Davis alleged that he had actually received only 182 days of credit, whereas he claimed entitlement to substantially more days’ credit. The lower court summarily denied relief. Because Davis made a prima facie claim for relief, we reverse the order insofar as it relates to Issue III and remand for a proper calculation of the credits received and due, or for attachment of those portions of the record that conclusively refute his claim.
AFFIRMED in part, REVERSED in part, and REMANDED with directions.
SHIVERS and ALLEN, JJ., concur.
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Johnson v. State, 776 So. 2d 1024 (Fla. 1st DCA 2001)…claims entitlement to an additional 699 days of jail credit. It is well established that a motion that sets forth specific periods of time for which a movant alleges he was denied jail credit sets forth a colorable claim for relief. Davis v. State, 680 So. 2d 527, 528 (Fla. 1st DCA 1996) (defendant’s allegation that he received only 182 days of credit, whereas he claimed entitlement to substantially more days’ credit, states a prima facie case for relief). The sentencing transcript, which indicates Appellant…
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Cassel Foulks v. State, 306 So. 3d 1178 (Fla. 3d DCA 2020)…722 So. 2d 905, 907 (Fla. 3d DCA 1998)). As part of that contract, the State and the defendant both receive a benefit for their bargain, but a defendant breaches the original plea agreement by violating the terms of probation. See Davis v. State, 680 So. 2d 527, 528 (Fla. 1st DCA 1996); Mulder v. State, 356 So. 2d 870, 871 (Fla. 4th DCA 1978), (“It cannot be said that the legislature intended to leave society without any recourse against those defendants who receive the benefit of the court’s mercy by bein…
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Scottie T. Fank v. State, 772 So. 2d 579 (Fla. 1st DCA 2000)…PER CURIAM. We reverse and remand this case for the trial court to award the correct amount of jail credit or to attach portions of the record conclusively refuting appellant’s claim. See Davis v. State, 680 So. 2d 527 (Fla. 1st DCA 1996). REVERSED and REMANDED. BARFIELD, C.J., WEBSTER AND VAN NORTWICK, JJ., CONCUR.…
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