RICHARD PRIESTER, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Richard Priester appeals the denial of his postconviction motion requesting additional credit for time served. The court holds that Priester is entitled to thirty-two days of additional credit for time awaiting the probation revocation hearing and 364 days of credit for time served on one count to apply against sentences on another count, pursuant to Florida Supreme Court precedent.
Priester is entitled to both the thirty-two days of additional credit for time awaiting the probation revocation hearing and the 364 days of credit for time served on count I to apply against the count II sentences, as required by Cook v. State and Tripp v. State.
[1] A motion for postconviction relief under Florida Rule of Criminal Procedure 3.800 is an appropriate vehicle to seek correction of the amount of credit for time served pri…
[2] A defendant is entitled to credit for time served awaiting a probation revocation hearing.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“where a defendant is sentenced to prison to be followed by probation for multiple offenses, and ultimately violates that probation, that defendant's cumulative sentence may not exceed the guidelines range of the original scoresheet. Otherwise, trial judges could structure sentences in such a manner as to circumvent the guidelines.”
Establishes the underlying rationale for the Cook and Tripp rule requiring credit for time served in probation revocation cases.
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Join FLexlaw to unlock all legal intelligencePriester entered guilty pleas in two cases, each calling for 364 days in jail followed by five years probation, to be served concurrently. After servi…
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COPE, Judge.
Richard Priester appeals an order denying his pdsteonviction motion requesting additional credit for time served.1 We conclude that he is entitled the requested credit.
Defendant-appellant Priester entered a plea in two cases.2 In each case the' agreement was for 364 days in jail (count I), followéd by five years probation (count II). The sentences in the two cases were concurrent.
Defendant served the 364 days in jail and was released to probation. He violated probation and, insofar as pertinent here,3 was sentenced to two five year terms of imprisonment, to be served consecutively.4 Defendant was granted credit for fifty-three days of time served while awaiting the probation revocation heating.
By motion for postconviction relief, defendant contends that he is entitled to thirty-two days additional credit for time served while awaiting the probation revocation hearing. The State concedes that the defendant is correct on this issue.
Defendant also argues that under the Florida Supreme Court’s decisions in Cook v. State, 645 So. 2d 436 (Fla.1994), and Tripp v. State, 622 So. 2d 941 (Fla.1993), he is entitled to 364 days credit for the time served on count I of each case against, the five-year sentences imposed .on count II. The State concedes that defendant is correct on this point as well.
It would be our hope that at some point the Florida Supreme Court may see fit to revisit Cook and Tripp. The theory underlying Cook and Tripp is that “where a defendant is sentenced to prison to be followed by .probation for multiple offenses, and ultimately violates that probation, that defendant’s cumulative sentence may not exceed the guidelines range of the original seoresheet. Otherwise, trial judges could structure sentences in such a manner as to circumvent the guidelines.” Cook, 645 So. 2d at 437-38 (citation omitted). Logically, this rule should come into play only where necessary to keep the sentence within the guidelines — but Cook itself held that credit for time served had to be granted where that step was not necessary to keep the sentence within the guidelines. See 645 So. 2d at 438 n. 5.
In the present case, it appears that the defendant’s guidelines5 exceeded the sentences imposed. By giving defendant credit for 364 days time served on count I, and credit for the same 364 days on count II, defendant is given a double credit. It would appear to us to be desirable to limit the rule in Cook and Tripp only to those situations where necessary in order to keep the disposition within the guidelines. At present, however, Cook and Tripp call for the credit to be granted and we remand for that purpose.
Reversed and remanded for further proceedings consistent herewith.
.Defendant filed this motion under Florida Rule of Criminal Procedure 3.800. We agree with the Second District Court of Appeal that Rule 3.800 can be used to make the claim that the trial court failed to order the correct amount of credit for time served prior to sentencing. See Swyck v. State, 693 So. 2d 618, 619 (Fla. 2d DCA), review granted, 699 So. 2d 1376 (Fla.1997); see also Knox v. State, 692 So. 2d 296, 297 (Fla. 3d DCA 1997).
. Circuit court case number 92-40142 and 93-12290.
. The sentences were corrected in Priester v. State, 651 So. 2d 1319 (Fla. 3d DCA 1995).
. The offenses are third-degree felonies.
. The guidelines range is subject to increase for the defendant’s violation of probation. See Fla. R.Crim. P. 3.701(d)(14); Williams v. State, 594 So. 2d 273, 275 (Fla.1992).
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Hodgdon v. State, 789 So. 2d 958 (Fla. 2001)…t permitted under the sentencing guidelines. See Witherspoon v. State, 776 So. 2d 984 (Fla. 5th DCA 2001) (applying Tripp, albeit reluctantly, where the defendant's sentence did not exceed the maximum permitted by the guidelines); Priester v. State, 711 So. 2d 177 (Fla. 3d DCA 1998) (same). Although we were concerned in Tripp with the circumvention of the sentencing guidelines, we were equally concerned with ensuring that offenses treated together at sentencing via a single scoresheet continue to be treated a…
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State v. Maynard Witherspoon, 810 So. 2d 871 (Fla. 2002)…WELLS, C.J., dissenting. I dissent because I do not believe that the rule of Tripp should apply in this instance. I would quash the Fifth District’s decision and apply the well-reasoned opinion of Judge Cope in Priester v. State, 711 So. 2d 177 (Fla. 3d DCA 1998), with which the Fifth District also agreed in this case. QUINCE, J., concurs.…
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Maynard Witherspoon v. State, 776 So. 2d 984 (Fla. 5th DCA 2001)…ntence so that there is no suggestion that the trial judge is trying to circumvent the guideline maximum, a sentence may be entered which does not include time previously served on another offense. While we agree with the court in Priester v. State, 711 So. 2d 177 (Fla. 3d DCA 1998), that based on the reasoning of Tripp, the Tripp rule should come into play only when the guideline maximum is exceeded, we also agree with Priester that, when given the opportunity to do so in Cook v. State, 645 So. 2d 436 (Fla.1…
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
- Tripp v. State, 622 So. 2d 941 (Fla. 1993)
- Williams v. State, 594 So. 2d 273 (Fla. 1992)
- Cook v. State, 645 So. 2d 436 (Fla. 1994)
- Swyck v. State, 693 So. 2d 618 (Fla. 2d DCA 1997)
- Knox v. State, 692 So. 2d 296 (Fla. 3d DCA 1997)
- State v. Bowens, 651 So. 2d 1319 (Fla. 3d DCA 1995)
- Priester v. State, 651 So. 2d 1319 (Fla. 3d DCA 1995)