OSCAR JOLLY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Oscar Jolly appeals a split sentence imposed upon revocation of probation, arguing it exceeds the statutory maximum when combined with time already served on probation. The court agrees and reverses, holding that trial courts must credit time previously served on probation to ensure the total sanction does not exceed the statutory maximum.
The court held that when imposing a sentence upon revocation of probation that includes a new probation period, trial courts must give credit for time previously served on probation if the new sanctions plus the time previously served exceed the statutory maximum for the offense.
[1] A sentence imposed following revocation of probation, including any new sanctions and previously served probation time, cannot exceed the statutory maximum for the underl…
[2] When probation is included as part of a sentence upon revocation, credit must be given for time previously served on probation if the total sanctions, including probation…
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Join FLexlaw to unlock all legal intelligence“In imposing a sentence following a revocation of probation, the combination of [new] sanctions imposed must not exceed the statutory maximum for the underlying offense. If the trial court includes probation as part of a sentence upon revocation of probation, the trial court must give credit for any time previously served on probation if the new period of probation together with other sanctions (including jail and prison credit) and the time previously served on probation total more than the statutory maximum for the underlying offense.”
This establishes the controlling legal standard for sentence calculations upon revocation of probation, requiring credit for time previously served.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceJolly was sentenced on May 31, 1994, to approximately ten months in jail followed by ten years of probation for a lewd and lascivious act on a child. …
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FULMER, Judge.
Oscar Jolly argues on appeal that the split sentence imposed upon revocation of his probation is illegal because, when combined with time already spent on probation, it exceeds the fifteen-year statutory maximum. We agree.
On May 31, 1994, Jolly was sentenced to time served, which was approximately ten months in the county jail, followed by ten years’ probation. On March 20, 1996, the trial court revoked Jolly’s probation for committing a new criminal offense and sentenced him to four and one-half years’ imprisonment, with credit for time served, followed by ten years’ probation. The written sentence filed on the same day reflects that Jolly was not given credit for time previously served on probation.
In Waters v. State, 662 So. 2d 332, 333 (Fla.1995) (quoting Bragg v. State, 644 So. 2d 586, 587 (Fla. 1st DCA 1994)), the supreme court held:
In imposing a sentence following a revocation of probation, the combination of [new] sanctions imposed must not exceed the statutory maximum for the underlying offense. If the trial court includes probation as part of a sentence upon revocation of probation, the trial court must give credit for any time previously served on probation if the new period of probation together with other sanctions (including jail and prison credit) and the time previously served on probation total more than the statutory maximum for the underlying offense.
The time previously served on probation is calculated from the date probation is imposed until the date of revocation. See Francois v. State, 695 So. 2d 695 (Fla.1997).
In this case, Jolly faced a total sanction of fifteen years, pursuant to sections 775.082(3)(e) and 800.04, Florida Statutes (1991), for committing a lewd and lascivious act on a child less than sixteen years of age. Upon revocation of probation, Jolly’s jail and probation sentence totalled fourteen and one-half years. When this period is added to the months previously served on probation, from May 31, 1994, through March 20, 1996, the total exceeds the fifteen-year statutory maximum.
Accordingly, we reverse and remand for resentencing in accordance with Waters.
PARKER, C.J., and PATTERSON, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Badger v. State, 23 So. 3d 813 (Fla. 2d DCA 2009)…of violation of probation. In 1997, the supreme court held that time of probation or community control is calculated from the date it is imposed until the date of revocation. See Francois v. State, 695 So. 2d 695 (Fla.1997); see also Jolly v. State, 699 So. 2d 303 (Fla. 2d DCA 1997). The legislature amended section 948.06(l)(d) to toll a term of community control or probation when an affidavit of violation is filed. See Ch. 2001-109, § 1, at 911-12, Laws of Fla. That amendment became effective on July 1, 2001…
Authorities Cited
- Waters v. State, 662 So. 2d 332 (Fla. 1995)
- Francois v. State, 695 So. 2d 695 (Fla. 1997)
- Bragg v. State, 644 So. 2d 586 (Fla. 1st DCA 1994)