NORMAN DELACRUZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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DeLacruz appeals the denial of his motion to correct sentencing error after his community control violation. The state concedes the error, and the court reverses, holding that a defendant is entitled to credit for time served on all pre-violation concurrent sentences, even if post-violation sentences are imposed consecutively.
A defendant is entitled to credit for time served arising from each pre-violation concurrent sentence, including those later re-imposed as consecutive sentences, because concurrent sentences are served at the same time and the defendant earned that credit during the pre-violation period.
[1] A defendant is entitled to credit for time served on each concurrent sentence, even if the sentences are later ordered to be served consecutively after a violation of pro…
[2] When multiple convictions result in concurrent sentences, credit must be awarded for time served on each sentence in any resentencing for the multiple convictions.
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“When a criminal defendant is sentenced after being convicted of a crime and serves some portion of that sentence, he or she is entitled to receive credit for the actual service of that sentence, or any portion thereof, in a resentencing for the same crime. Likewise, if multiple convictions result in concurrent sentences, credit must be awarded for time served on each sentence in any resentencing for the multiple convictions.”
Establishes the rule that credit for time served must be awarded on each pre-violation concurrent sentence regardless of how post-violation sentences are structured.
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDeLacruz was convicted of one first-degree felony (count 1) and three second-degree felonies (counts 2-4), and was initially sentenced to concurrent t…
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ON CONCESSION OF ERROR
The defendant appeals from the circuit court’s order denying his motion to correct sentencing error. The state concedes the sentencing error. We reverse and remand for correction of the sentencing error.
The defendant was convicted of a first-degree felony (count 1) and three second-degree felonies (counts 2-, 3, and 4). On all four counts, he was sentenced to concurrent terms of ten years in prison followed by ten'years of probation, the first two years of which would be served on community control.
The defendant violated community control. On count 1, the court sentenced the defendant to thirty years in prison. On count 2, the court sentenced the defendant to fifteen years in prison to be served concurrently with count l’s sentence. On counts 3 and 4, the court sentenced the defendant to fifteen years in prison, to be served consecutively to each other and to the sentences on counts 1 and 2.
The court gave the defendant credit for time served on counts 1 and 2 arising from his pre-violation concurrent sentences. However, the court did not give the defendant credit for time served on counts 3 and 4 arising from his pre-violation concurrent sentences.
The defendant filed a motion to correct sentencing error arguing that the court, in its post-violation sentence, erred in not giving him credit for time served on counts 3 and 4 arising from his pre-violation concurrent sentences. The court did not rule on the defendant’s motion within sixty days, causing the motion to be considered denied. See Fla. R.Crim. P. 3.800(b)(1)(B) & 3.800(b)(2)(B).
This appeal followed. The defendant argues that the" circuit court, in its post-violation sentence, erred in not giving him credit for time served on counts 3 and 4 arising from his pre-violation concurrent sentences.. According to the defendant: “The fact that the [court] ... sentenced him to consecutive prison terms [upon the community control violation] did not negate the fact that he had .already served his [pre-violation] prison time on each of the then-concurrent sentences.”
The state concedes the error. We agree. In State v. Rabedeau, 2 So.3d 191 (Fla.2009), our supreme court held that a defendant who was sentenced to three concurrent prison terms and later violated probation was entitled to credit for time served arising from each of his pre-violation concurrent sentences. Id. at 193. As the Rabedeau court reasoned:
When a criminal defendant is sentenced after being convicted of a crime and serves some portion of that sentence, he or she is entitled to receive credit for the actual service of that sentence, or any portion thereof, in a resentencing for the same crime. Likewise, if multiple convictions result in concurrent sentences, credit must be awarded for time semed on each sentence in any resen-tencing for the multiple convictions. The word “concurrently” simply means “at the same time,” and by imposing sentences to be served concurrently, a trial court is permitting a defendant to *229serve multiple sentences at the same time.
Id. (emphasis added).
Here, as in Rabedeau, the defendant was entitled to credit for time served arising from each of his pre-violation concurrent sentences, including on counts 3 and 4, regardless of the fact that the court, post-violation, imposed consecutive sentences on counts 3 and 4.
Based on the foregoing, we reverse the circuit court’s denial of the defendant’s motion to correct sentencing error. We remand for the circuit court to correct the defendant’s post-violation sentence by giving him credit for time served on counts 3 and 4 arising from his pre-violation concurrent sentences.
Reversed and remanded for correction of sentences on counts 3 and k.
TAYLOR and DAMOORGIAN, JJ., concur.
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Citator
Cited By
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Vinson v. State, 188 So. 3d 86 (Fla. 4th DCA 2016)…giving him credit for time served on Count 3. The court failed to rule on Defendant’s motion within sixty days,- thereby causing the motion to be considered denied for appellate review purposes. See Fla.R.Crim. P. 3.800(b)(2)(B); Delacruz v. State, 180 So. 3d 227, 228 (Fla. 4th DCA 2015). On appeal, Defendant argues that in te-sentencing him to two five-year consecutive sentences, the court was required to award him the jail and prison credit on both counts because he served the pre-violation sentences for…
Authorities Cited
- State v. Rabedeau, 2 So. 3d 191 (Fla. 2009)