LARRY GLENN RAY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 2001-03-21
No. 2D00-1908
BLUE, A.C.J., and FULMER, J., concur.
782 So. 2d 468 Florida District Court of Appeal, Second District (2001) Caution
Cited by 8 cases

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Holding

The trial court correctly denied the defendant's request for credit for time served on a prior case when sentencing for a subsequent violation of probation.


Headnotes

[1] A defendant is not entitled to credit for time served on a prior sentence when the current sentence is imposed for offenses scored on separate guidelines sheets, and the…

[2] The prohibition against circumventing sentencing guidelines by imposing consecutive probation, as established in Tripp v. …

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Facts & Procedural History

The defendant was convicted of multiple offenses over several years, leading to various sentences and probation terms. After admitting to violating hi…

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Opinion of the Court
DAVIS, Judge.

DAVIS, Judge.

Larry Glenn Ray challenges the trial court’s denial of his request for credit for time served. When the trial court sentenced Ray to thirty-nine months’ incarceration after he admitted violating the terms of his community control, Ray requested credit for time previously served on another case. Because we conclude that the trial court correctly denied his request for credit, we affirm.

Ray was convicted of two counts of lewd act on a child in 1993 and was placed on probation. In 1996, he entered a negotiated plea of no contest to fleeing to elude an officer, aggravated assault on an officer, resisting arrest with force or violence, and escape. As a part of that negotiated plea, Ray also admitted violating his earlier probation. The plea agreement called for a sentence of four and one-half years of incarceration followed by five years of probation. The trial court accepted the plea and imposed the four-and-one-half-year prison sentence on the 1993 charges, followed by the consecutive five-year probationary term on the 1996 charges.

In 1998, Ray was again found to have violated the terms of his probation and was placed on two years of community control. In 1999, he entered a negotiated plea admitting that he had violated his community control in exchange for a sentence of thirty-nine months in prison. The trial court accepted his plea and imposed the thirty-nine-month term. Ray then filed a motion requesting credit for the four and one-half years he had already served on the 1993 charges. The trial court denied the motion.

Although Ray argues that this issue is controlled by Tripp v. State, 622 So. 2d 941 (Fla.1993), we cannot agree because Tripp was intended to address a specific sentencing danger not present here. In Tripp, the supreme court sought to prohibit the practice of imposing consecutive probation as a mechanism to boost, on a subsequent violation, the total incarcerative term beyond the guidelines range. Because Ray’s total incarcerative term did not exceed his original guidelines range on either set of offenses, that consideration is not present here.

In Tripp, the defendant was convicted of burglary and grand theft, both offenses occurring as part of the same incident. At sentencing, both offenses were properly scored on one guidelines scoresheet.

The trial court imposed a guidelines prison sentence on the burglary charge and a period of consecutive probation on the grand theft charge. When the defendant violated his probation, the trial court imposed a new prison sentence on the grand theft charge.

The trial court gave Tripp four years’ credit for the time he had served on the burglary charge, and the appellate court reversed. The Florida Supreme Court upheld the trial court, stating that Tripp was entitled to credit for the time he served on the burglary charge against the new sentence imposed on the grand theft charge. The supreme court explained that failure to award such credit would allow the sentencing court to circumvent the intent of the guidelines as follows: The trial court could impose the maximum incarcerative sentence for the primary offense and probation-on the other counts. Then, on a subsequent violation of probation, the court could again impose the maximum incarcerative term. The supreme court observed that if the defendant were not given credit for time served for the primary offense, the total incarcerative period imposed would exceed the guidelines range. Id. at 942.

The holding in Tripp is plainly intended to preclude trial courts from employing a sentencing mechanism that effectively circumvents and exceeds the sentencing guidelines ranges specified by law.

However, nothing in Tripp suggests that the supreme court intended for Tripp to apply to every case where probation is imposed on one offense consecutive to a prison sentence on another offense. In the instant case, unlike the situation in Tripp, Ray’s 1996 sentencing involved two separate scoresheets.1 As a result, the 1996 charges were not factored into the computation of the guidelines sentence for the 1993 offenses; the 1993 charges were factored into the computation of the guidelines sentence for the 1996 charges only as prior record. Tripp does not apply when the offenses are scored on. separate guidelines scoresheets and one of the offenses is not factored into the guidelines computation of the other offense. See Slater v. State, 639 So. 2d 80 (Fla. 2d DCA 1994).

Because Ray was sentenced using two separate scoresheets, when he appeared before the trial court for sentencing on the 1993 charges and the 1996 charges together, the trial court could have sentenced Ray to a maximum guidelines sentence on each set of offenses and could have imposed those sentences consecutively. See Dillard v. State, 728 So. 2d 725 (Fla.1999).

In other words, the maximum sentence that the sentencing court could have imposed in 1996 would have been the sum of the two guideline máximums.

Consequently, the Tripp policy considerations are not present here. The total sentence imposed was not any more severe than the sentence that the court could have imposed in 1996.

The trial court was correct in denying Ray’s request for credit for time served.

Affirmed.

BLUE, A.C.J., and FULMER, J., concur. . Because the earlier offenses occurred before January 1, 1994, and the new charges arose after that date, the offenses were required to be scored on two separate scoresheets. See Dillard v. State, 728 So. 2d 725 (Fla.1999).


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Cited By

  • Jackson v. State, 876 So. 2d 1253 (Fla. 5th DCA 2004)
    …PER CURIAM. AFFIRMED. See Ray v. State, 782 So. 2d 468 (Fla. 2d DCA 2001), review denied, 819 So. 2d 138 (Fla.2002). GRIFFIN, PALMER and MONACO, JJ., concur.…
  • Palmer v. State, 804 So. 2d 455 (Fla. 4th DCA 2001)
    …e expressed concern with the application of Tripp. See Priester v. State, 711 So. 2d 177 (Fla. 3d DCA 1998) (certifying to the supreme court the question [*456] whether Tripp should apply when the reasons prompting it are not present); Ray v. State, 782 So. 2d 468 (Fla. 2d DCA 2001) (refusing to apply Tripp where the sentence does not exceed the maximum sentence possible at the original sentencing). However, we apply Tripp as it currently exists. Here, we find that Tripp applies to sentences where a portion…
  • Salem Lefils v. State, 876 So. 2d 1252 (Fla. 5th DCA 2004)
    …PER CURIAM. AFFIRMED. Ray v. State, 782 So. 2d 468 (Fla. 2d DCA 2001), review denied, 819 So. 2d 138 (Fla.2002). PLEUS, PALMER and MONACO, JJ., concur.…

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