ONEY J. STEPHENSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Stephenson appeals his sentence for probation violation, arguing the trial court failed to credit him with time served on his initial offense when imposing a new sentence after revoking his probation. The court agrees error occurred and vacates the sentence for resentencing in compliance with established case law requiring such credit.
The trial court must award credit for time served on the first offense toward the sentence imposed after revocation of probation on the second offense, pursuant to Tripp v. State and Cook v. State. The trial judge's frustration about inability to increase the first offense sentence does not justify withholding this credit, though the judge retains discretion to enhance the sentence for the second offense itself.
[1] A defendant is entitled to credit for time served in another county from the date a detainer was placed on them, even if they were not officially arrested on that charge.
[2] A motion for additional credit for time served must allege that court records demonstrate on their face entitlement to relief.
Previewing 2 of 5 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“if a trial court sentences a defendant, based on one scoresheet, to a prison term for one offense, followed by probation for another, and the defendant later violates the probation and returns for sentencing on the second offense, credit for time served on the first offense must be awarded on the sentence imposed after revocation of probation”
Establishes the binding legal rule from precedent requiring credit for time served on the first offense
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Join FLexlaw to unlock all legal intelligenceIn 1993, Stephenson was sentenced to seven years in prison for lewd and lascivious act in the presence of a child and ten years probation for lewd and…
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Stephenson appeals his sentence because the trial court failed to credit him with time served -following revocation of his probation. The state agrees error occurred. Thus, we vacate the sentence and remand for further consideration of the sentence consistent with this opinion.
The facts in this case are set forth in the record. In 1993, Stephenson was sentenced for two crimes: lewd and lascivious act in the presence of a child,1 and lewd and lascivious assault on a minor.2 -He was sentenced to seven years in prison for the first crime, and ten years on probation, consecutively for the second. He served the incarcerative portion of Ms sentence for the first crime and was released on probation. Five months after commencing his probation he committed a new substantive offense and his probation was revoked. The “permitted” sentencing range under the 1993 guidelines was seven to seventeen years. The trial court sentenced Stephenson to fifteen years with credit only for time served after violation of probation. It denied his request for additional credit for time served on the first offense.
Pursuant to Tripp v. State, 622 So. 2d 941, 942 (Fla.1993) and Cook v. State, 645 So. 2d 436, 437 (Fla.1994), if a trial court sentences a defendant, based on one scoresheet, to a prison term for one offense, followed by probation for another, and the defendant later violates the probation and returns for sentencing on the second offense, credit for time served on the first offense must be awarded on the sentence imposed after revocation of probation. The trial judge expressed frustration in this case because he could not sentence Stephenson on the first crime since he had served his entire sentence for that crime. The judge thought he should be able to impose a longer sentence.
That does not appear to be legally possible unless the Florida Supreme Court revisits Tripp and Cook. However, in the case of violation of probation and multiple violations, the trial judge has discretion to “bump up” the sentence for the second crime.3 See Williams v. State, 594 So. 2d 273, 274 (Fla.1992); Shaw v. State, 637 So. 2d 254 (Fla. 2d DCA 1994); Attach v. State, 634 So. 2d 254 (Fla. 2d DCA 1994).
Sentence VACATED; REMANDED for resentencing.
GRIFFIN, C.J., and ANTOON, J., concur. . § 800.04(4), Fla. Stat. (1993).
. § 800.04(1), Fla. Stat. (1993).
. Fla. R.Crim. P. 3.701(d)14.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities 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)
- Shaw v. State, 637 So. 2d 254 (Fla. 2d DCA 1994)
- Albach v. State, 634 So. 2d 254 (Fla. 2d DCA 1994)