GEORGE SINKS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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George Sinks appeals the revocation of his probation following a violation in 1995 and the resulting split sentence for lewd and lascivious conduct. The court affirms the revocation but remands for resentencing due to errors in calculating time credits and failing to credit previously served probation/community control time against the statutory maximum.
The court affirmed the revocation of probation as the trial court properly determined a willful and substantial violation. However, the court remanded for resentencing because the trial court failed to credit time previously served on probation/community control toward the new sentence (causing the total to exceed the statutory maximum) and failed to properly credit time served in county jail and DOC custody.
[1] A trial court's determination of a willful and substantial violation of probation will be affirmed if no error is demonstrated.
[2] Where a split sentence is imposed upon revocation of probation, and the total of the split sentence terms plus time previously served on probation or community control ex…
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Join FLexlaw to unlock all legal intelligence“Where a split sentence is imposed upon revocation of probation, if the total of the split sentence terms plus the time previously served on probation/community control exceeds the statutory maximum for the offense, then the time previously spent on probation/community control must be credited toward the probation/community control portion of the newly imposed split sentence.”
Establishes the legal standard for crediting prior probation/community control time when the combined sentence would exceed statutory maximum.
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Join FLexlaw to unlock all legal intelligenceSinks pled guilty to lewd and lascivious conduct in 1991 and received community control followed by probation. In 1993, his community control was revo…
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PER CURIAM.
In 1991, appellant pled guilty to lewd and lascivious conduct. Adjudication was withheld and appellant was sentenced to two years community control followed by eight years probation. In 1993, appellant’s community control was violated for an unauthorized change of residence. Upon revocation, appellant was sentenced to four years imprisonment, two years community control (which was stayed until April of 1995), and eight years probation. That revocation was the subject of appellant’s prior appeal, wherein we upheld the revocation and found no error sentencing appellant to both incarceration and community control under the facts of the case. Sinks v. State, 646 So. 2d 229 (Fla. 4th DCA 1994). The supreme court agreed that this was not error, but reversed and remanded in part for resentencing because the sentence imposed exceeded the applicable guideline cell range. Sinks v. State, 661 So. 2d 303 (Fla.1995).
Soon thereafter, before the trial court re-sentenced appellant, appellant violated his probation in November of 1995 by making contact with a juvenile without adult supervision. Appellant was adjudicated guilty on the underlying lewd and lascivious conduct charge and sentenced to seven years incarceration followed by eight years probation. Appellant now challenges the revocation of his probation and the sentence imposed.
We affirm the revocation, no error having been demonstrated in the trial court’s determination of a willful and substantial violation; but we remand for resentencing.
Where a split sentence is imposed upon revocation of probation, if the total of the split sentence terms plus the time previously served on probation/community control exceeds the statutory maximum for the offense, then the time previously spent on probation/community control must be credited .toward the probation/community control portion of the newly imposed split sentence. See Waters v. State, 662 So. 2d 332 (Fla.1995); Meader v. State, 665 So. 2d 344 (Fla. 4th DCA 1995). In the instant ease, the state concedes that the trial court erred in failing to credit appellant with the time previously spent on probation/community control as the total of this time plus the newly imposed split sentence exceeds the fifteen year statutory maximum. On remand, the trial court is to determine the appropriate period of probation/ community control time to be credited towards the probationary portion of the split sentence that was imposed upon the revocation of appellant’s probation.
Additionally, the state concedes that the trial court incorrectly calculated the amount of time served in county jail and erroneously failed to award credit for time served in DOC. See State v. Summers, 642 So. 2d 742, 743 (Fla.1994); Meader, 665 So. 2d at 345. Although the court orally ordered such DOC credit, its written order does not reflect such. On remand, the trial court is to determine the amount of the time served to be credited toward the inearcerative portion of the split sentence that was imposed upon the revocation of appellant’s probation.
GUNTHER, C.J., and GLICKSTEIN and DELL, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Eon G. Cooper v. State, 967 So. 2d 928 (Fla. 1st DCA 2007)…The State concedes that the appellant should be given credit for more than 90 days served and submits that the sentencing documents should correctly reflect the number of days the appellant has served in the Jackson County jail.1 In Sinks v. State, 691 So. 2d 1202, 1204 (Fla. 4th DCA 1997), the State similarly conceded that the trial court had incorrectly calculated the amount of credit for time served and that the written statement on record did not reflect the correct total. The court directed that, on rema…
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Carroll v. State, 740 So. 2d 81 (Fla. 3d DCA 1999)…sault upon a person under the age of sixteen, exceeds the statutory maximum for that offense, the time the defendant previously spent on probation must be credited toward the probation portion of the newly imposed split sentence. See Sinks v. State, 691 So. 2d 1202 (Fla. 4th DCA 1997); Vaughn v. State, 671 So. 2d 299 (Fla. 5th DCA 1996). For this reason, as the state concedes, the cause must be remanded for the trial court to determine the appropriate period of probation time to be credited toward the probatio…
Authorities Cited
- Carder v. State, 642 So. 2d 742 (Fla. 1994)
- Waters v. State, 662 So. 2d 332 (Fla. 1995)
- Meader v. State, 665 So. 2d 344 (Fla. 4th DCA 1995)
- Sinks v. State, 661 So. 2d 303 (Fla. 1995)
- Sinks v. State, 646 So. 2d 229 (Fla. 4th DCA 1994)