MARY JO KIMBALL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a defendant must receive credit for time served on community control towards a new probationary term for the same offense, but the probationary period is tolled if the defendant absconds from supervision.
Kimball's probation was revoked, and she was re-sentenced. She argued the new sentence exceeded the statutory maximum because she did not receive cred…
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THOMPSON, J.
Mary Jo Kimball appeals her sentence for uttering a forgery and burglary of a structure entered after the trial court revoked her probation. We remand for a determination of the proper amount of credit Kimball should be given for time previously served on community control.
Initially, Kimball was sentenced to six months of community control followed by 12 months of drug offender probation. The state filed an affidavit of violation of community control, and after a hearing, the trial court revoked Kimball’s probation. The trial court re-sentenced Kimball to two years in prison followed by three years of probation.
Kimball contends that because she did not receive credit for time served on community control, the sentence of two years in prison followed by three years of probation exceeds the five-year statutory maximum permitted for the third-degree felony offenses. The state concedes the sentence was improper, but contends that because Kimball had absconded from supervision, the probationary period was tolled until Kimball was returned to supervision. We agree with both contentions.
Upon revocation of probation, credit must be given for time previously served on probation toward any newly-imposed probationary term for the same offense to insure that the total term of probation does not exceed the statutory maximum for that offense. State v. Summers, 642 So. 2d 742, 743 (Fla.1994); Langley v. State, 839 So. 2d 826 (Fla. 4th DCA 2003). However, when a probationer absconds from supervision, the probationary period is tolled until the probationer is returned to supervision. Ware v. State, 474 So. 2d 332, 334 (Fla. 1st DCA 1985).
Accordingly, the sentence is vacated, and the case is remanded to the trial court for a determination of the proper amount of credit Kimball should be given for time served on community control.
CONVICTION AFFIRMED; SENTENCE VACATED, CAUSE REMANDED.
GRIFFIN and PALMER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Williams v. State, 202 So. 3d 917 (Fla. 4th DCA 2016)…defendant absconds from supervision. See Francois v. State, 695 So. 2d 695, 697 (Fla.1997) (“[Absconding from probation tolls the period.... One who absconds from' supervision is no longer under the controlling arm of the state.”); Kimball v. State, 890 So. 2d 495, 496 (Fla. 5th DCA 2004) (“[W]hen a probationer absconds from supervision, the probationary period is tolled until the probationer is returned to supervision.”); Williams v. State, 529 So. 2d 366, 367 (Fla. 2d DCA 1988) (“[W]hen a probationer abscon…
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Badger v. State, 23 So. 3d 813 (Fla. 2d DCA 2009)…otal more than the statutory maximum”). Finally, even prior to the statutory amendment in 2001, there was authority for the proposition that probation is automatically tolled during a period when the probationer has absconded. See Kimball v. State, 890 So. 2d 495, 496 (Fla. 5th DCA 2004). This presents perhaps the most difficult aspect of this case. It appears likely that Mr. Badger may have absconded for most of the period between April 2001 and his arrest in August 2002. At the violation of community contr…
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Jacoby v. State, 215 So. 3d 168 (Fla. 2d DCA 2017)…te v. Summers, 642 So. 2d 742, 744 (Fla. 1994); see also § 948.06(3), Fla. Stat. (2015). But “when a probationer absconds from supervision, the probationary period is tolled until the probationer is returned to supervision.” Kimball v. State, [*171] 890 So. 2d 495, 496 (Fla. 5th DCA 2004); see also Badger v. State, 23 So. 3d 813, 817 (Fla. 2d DCA 2009). Here, Jacoby never actually served any time on his original probationary term of thirty-six months. He admitted to the violations in the affidavit, and the t…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Carder v. State, 642 So. 2d 742 (Fla. 1994)
- Ware v. State, 474 So. 2d 332 (Fla. 1st DCA 1985)
- Langley v. State, 839 So. 2d 826 (Fla. 4th DCA 2003)