CHRISTOPHER SCHURMAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court should have awarded additional jail credit for time served between arrest and community control, but rejected the claim of ineffective assistance of counsel regarding sentence expiration.
Appellant sought additional jail credit and claimed ineffective assistance of counsel. The trial court awarded some credit but denied the ineffective …
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PER CURIAM.
We agree with appellant that the trial court should have awarded him an additional 222 days for time served in county jail between the time of his arrest in 1993, and the commencement of his initial community control sentence. Our review of the sentencing form discloses that the court should have employed the “split sentence violator resentencing” option and awarded credit for 222 days incarcerated in county jail, in addition to the 618 days’ credit given appellant while confined in jail between the dates of his release from prison in May 1998, and his resentencing in July 2000.
We disagree with appellant, however, as to his argument that counsel was ineffective for failing to recognize that his sentence in Case No. 93-202 had expired before the violation of probation resulting in his resentencing in May 1999. It is well established that a person cannot be sentenced to simultaneous prison and probation. See Porter v. State, 585 So. 2d 399 (Fla. 1st DCA 1991); Brooks v. State, 762 So. 2d 1011 (Fla. 5th DCA 2000); Clemons v. State, 629 So. 2d 1067 (Fla. 2d DCA 1994); Cox v. State, 468 So. 2d 437 (Fla. 2d DCA 1985); Pearson v. State, 354 So. 2d 97 (Fla. 2d DCA 1977). Consequently, although the incarcerative portion of his sentence in Case No. 93-202 may have expired prior to his release from prison in May 1998, the probationary portion of that sentence was tolled while he remained in prison on other sentences, and it did not begin to run until appellant was released in May 1998. Therefore, his probationary sentence in Case No. 93-202 was in effect at the time he violated probation, and the trial court properly denied appellant’s claim of ineffective assistance of counsel.
AFFIRMED in part, REVERSED in part, and REMANDED with directions to correct the sentencing form to reflect appropriate jail credit. Appellant need not be present.
ERVIN, KAHN and PADOVANO, JJ., concur.
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Citator
Cited By
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Foster v. State, 889 So. 2d 951 (Fla. 5th DCA 2004)…689 So. 2d 1195 (Fla. 4th DCA 1997); Dewitt v. State, 639 So. 2d 694 (Fla. 5th DCA 1994). Here, however, Foster received separate sentences from different courts at different times. The case cited by the trial court in its order, Schurman v. State, 847 So. 2d 569 (Fla. 1st DCA 2003), deals with the situation of a defendant who receives separate sentences from different courts at different times. Under Schurman, the probationary portion of the sentence that completes its incarcerative portion at first is toll…
Authorities Cited
- Porter v. State, 585 So. 2d 399 (Fla. 1st DCA 1991)
- COX v. State, 468 So. 2d 437 (Fla. 2d DCA 1985)
- Clemons v. State, 629 So. 2d 1067 (Fla. 2d DCA 1994)
- Brooks v. State, 762 So. 2d 1011 (Fla. 5th DCA 2000)
- Nelson v. State, 354 So. 2d 97 (Fla. 4th DCA 1977)
- Pearson v. State, 354 So. 2d 97 (Fla. 2d DCA 1977)