WALLACE DUNCAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Wallace Duncan appealed the trial court's denial of his motion to correct sentence, claiming he was entitled to credit for time served under Tripp v. State when sentenced as a habitual offender after probation revocation. The court affirmed, holding that Tripp does not apply to habitual offender sentences because the sentencing guidelines do not apply to such sentences.
Duncan is not entitled to credit for time served because Tripp applies only to sentences governed by the sentencing guidelines, and habitual offender sentences are not subject to the guidelines. The policy concerns underlying Tripp do not apply to habitual offender sentences.
[1] A habitual offender sentence is not subject to the sentencing guidelines.
[2] A defendant is not entitled to credit for time served on a guidelines sentence when subsequently sentenced as a habitual offender.
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Join FLexlaw to unlock all legal intelligence“when prison and probation terms are imposed for different crimes at the same sentencing proceeding, a subsequent prison sentence upon revocation of that probation must reflect an award of credit for the earlier time served”
Explains the holding in Tripp v. State that is the foundation for Duncan's argument
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Join FLexlaw to unlock all legal intelligenceDuncan was sentenced at one proceeding in three separate cases, receiving two guidelines sentences and one habitual offender sentence. One guidelines …
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[*702] PER CURIAM.
Wallace Duncan challenges the trial court’s denial of his motion to correct sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Duncan claims deprivation of credit for time served to which he is entitled pursuant to Tripp v. State, 622 So. 2d 941 (Fla.1993). Because Tripp is not applicable to the habitual offender sentence that Duncan is serving, we affirm. We proceed en banc because this decision conflicts with Kilpatrick v. State, 622 So. 2d 1032 (Fla. 2d DCA 1993).
At one sentencing proceeding, Duncan was sentenced in three separate cases. He received two guidelines sentences and a habitual offender sentence at that time. For one of the guidelines sentences, Duncan was sentenced to a term of imprisonment followed by probation. A concurrent term of probation as a habitual offender was imposed in the case before us. After serving the prison term and being placed on probation, Duncan violated his probation. Upon revocation of probation in this case, Duncan was sentenced to prison as a habitual offender without credit for time previously served. Duncan contends that under Tripp he is entitled to the credit for the time served in prison on the guidelines sentence imposed at the original sentencing.
In Tripp, the Florida Supreme court held that when prison and probation terms are imposed for different crimes at the same sentencing proceeding, a subsequent prison sentence upon revocation of that probation must reflect an award of credit for the earlier time served. This, the - court reasoned, is necessary to preserve the intent of the sentencing guidelines. Duncan’s sentence in this case, however, is a habitual offender sentence to which the guidelines do not apply. Consequently, Duncan is not entitled to credit for the time he served pursuant to the guidelines sentence.
The danger sought to be avoided by Tripp — the imposition of prison time in excess of that mandated by the guidelines in circumstances where probation on one or more counts follows prison time on one or more others — simply does not inhere in the context of a habitual offender sentence for which the guidelines do not apply. To the extent that this opinion conflicts with Kilpatrick v. State, 622 So. 2d 1032 (Fla. 2d DCA 1993), we recede from Kilpatrick.
Affirmed.
THREADGILL, C.J., RYDER, DANAHY, CAMPBELL, SCHOONOVER, FRANK, PARKER, PATTERSON, ALTENBERND, BLUE, LAZZARA, FULMER, QUINCE, WHATLEY, JJ., concur.
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State v. Matthews, 891 So. 2d 479 (Fla. 2004)…LEWIS, J. We have for review the decision in Matthews v. State, 854 So. 2d 238 (Fla. 4th DCA 2003), which certified conflict with the decision in Duncan v. State, 686 So. 2d 701 (Fla. 2d DCA 1996). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. [*481] FACTS AND PROCEDURAL HISTORY On June 14, 1990, Gary Matthews, the respondent, was charged in case number 90-1156 with battery on a law enforcement officer, escape,…1 / 5
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Swyck v. State, 693 So. 2d 618 (Fla. 2d DCA 1997)…p eliminated did not inhere in his circumstances. As the prison sentence in the second case was not factored into any guideline calculation initially, Tripp does not apply. Slater v. State, 639 So. 2d 80 (Fla. 2d DCA 1994). See also Duncan v. State, 686 So. 2d 701 (Fla. 2d DCA 1996). Swyck’s second complaint is that he was not properly credited with twelve days spent in the county jail between his arrest for violation of probation and the sentence which followed. This court has consistently afforded relief t…
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Hernandez v. State, 254 So. 3d 1091 (Fla. 3d DCA 2018)
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Tripp v. State, 622 So. 2d 941 (Fla. 1993)
- Kilpatrick v. State, 622 So. 2d 1032 (Fla. 2d DCA 1993)