MICHAEL VAN THOMPSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Michael Van Thompson appealed his re-sentencing in one of two sexual battery cases, arguing the trial court erred by denying him credit for time served in the Florida Department of Corrections. The State conceded the error, and the court reversed and remanded for proper credit calculation.
The trial court erred in denying Thompson credit for time served. The sentence in Case No. 95-3676 is reversed and remanded with instructions to give Thompson credit for all time served, including time spent in DOC custody.
[1] A trial court errs when it denies a defendant credit for prison time already served in the custody of the Department of Corrections during re-sentencing.
[2] A sentence is subject to reversal and remand when the trial court fails to award credit for time served in Department of Corrections custody.
Previewing 2 of 3 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“All parties agree that in denying the appellant's request for credit for time served in the latter case, the trial court erred.”
Establishes that both appellant and State conceded the error, making reversal appropriate.
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Join FLexlaw to unlock all legal intelligenceThompson was convicted in two cases of sexual battery crimes against the same victim on different dates. In Case No. 95-2472, he received 60 years on …
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PER CURIAM.
The appellant, Michael Van Thompson, contends that in re-sentencing him, the trial court erred in denying him credit for prison time served in Circuit Court Case No. 95-3676. The State rightfully concedes the error. Accordingly, we reverse the sentence in Circuit Court Case No. 95-3676 and remand the case to the trial court with instructions to give the appellant credit for all time served, including time spent in the custody of the Florida Department of Corrections (DOC).
The appellant was convicted in Circuit Court Case No. 95-2472 of sexual battery (by using a gun and threatening to use deadly force) in Count One and attempted sexual battery in Count Two. He committed these crimes upon the same victim on two different dates. The trial court classified him as an habitual felony offender (HFO) and sentenced him on the respective counts to 60 and 10 years, to run consecutively. In Circuit Court Case No. 95-3676, the appellant was convicted of sexual battery by some force or violence. He was sentenced as an HFO to 20 years, to run concurrently with the Count One sentence in the other case. On direct appeal, the HFO sentences in both cases were vacated for lack of prior qualifying offenses, and the cases were remanded for re-sentencing. See section 775.084(1)(a)2, Florida Statutes (1995); Thompson v. State, 732 So. 2d 1212 (Fla. 1st DCA 1999); Thompson v. State, 726 So. 2d 351 (Fla. 1st DCA 1999).
The appellant served approximately four years in prison prior to the September 1999 re-sentencing. In Circuit Court Case No. 95-2472, the trial court re-sentenced the appellant to 12 years on Count One and to 5 years on Count Two, to run concurrently. The court awarded credit for time served. However, in Circuit Court Case No. 95-3676, when the trial court re-sentenced the appellant to 14 years, to run consecutively to Count One in the other case, no credit was given for time already served in DOC custody. All parties agree that in denying the appellant’s request for credit for time served in the latter case, the trial court erred. See Tillman v. State, 693 So. 2d 626 (Fla. 2d DCA 1997); Jones v. State, 633 So. 2d 482 (Fla. 1st DCA 1994).
The sentence in Circuit Court Case No. 95-3676 is REVERSED, and the case REMANDED, with instructions.
ALLEN, BENTON and BROWNING, JJ., CONCUR.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Barnishin v. State, 927 So. 2d 68 (Fla. 1st DCA 2006)…tionary split sentence, a trial court may resen-tence the defendant” “with credit for time served”). Mr. Barnishin was entitled to credit for all time served on each sentence, upon resentencing after probation was revoked. See Van Thompson v. State, 771 So. 2d 593, 594 (Fla. 1st DCA 2000). Convicted on no contest pleas of two felonies, possession of a firearm by a convicted felon and dealing in stolen property, Mr. Barnishin was initially placed on two years’ community control in each case. In time, communit…
Authorities Cited
- Jones v. State, 633 So. 2d 482 (Fla. 1st DCA 1994)
- Tillman v. State, 693 So. 2d 626 (Fla. 2d DCA 1997)
- Gray v. State, 693 So. 2d 626 (Fla. 2d DCA 1997)
- Van Thompson v. State, 726 So. 2d 351 (Fla. 1st DCA 1999)
- Bobbye Sikes Wicke v. Sikes, 732 So. 2d 1212 (Fla. 1st DCA 1999)
- Toole v. State, 732 So. 2d 1212 (Fla. 1st DCA 1999)