ROBERT RABEDEAU, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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In this criminal appeal, the Florida Fifth District Court of Appeal held that a defendant resentenced to consecutive sentences after violating probation is entitled to credit for time already served on the original concurrent sentences for each newly imposed consecutive sentence, not just one. The court reversed the trial court's denial of credit and certified conflict with the Second District Court of Appeal's contrary decision in Gisi v. State.
Yes. A defendant serving a split sentence (incarceration followed by probation) who is resentenced to consecutive sentences upon violation of probation is entitled to credit for time served on the incarcerative portion as to each sentence, not merely one, because concurrent sentences by their nature enable simultaneous service on multiple offenses.
[1] A defendant, upon resentencing after violating probation, is entitled to credit for prison time already served on original concurrent sentences for each newly imposed con…
[2] Concurrent sentences allow a defendant to serve multiple sentences simultaneously, and completion of the incarcerative portion of one concurrent sentence means completion…
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Join FLexlaw to unlock all legal intelligence“IS A DEFENDANT, ON RESENTENCING, ENTITLED TO CREDIT ON EACH NEWLY IMPOSED CONSECUTIVE SENTENCE FOR PRISON TIME ALREADY SERVED ON THE ORIGINAL CONCURRENT SENTENCES?”
The core legal question presented by the appeal.
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Join FLexlaw to unlock all legal intelligenceRabedeau was originally convicted of three counts of lewd and lascivious conduct and sentenced to three concurrent two-year terms of community control…
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EVANDER, J.
This appeal presents the following question:
IS A DEFENDANT, ON RESEN-TENCING, ENTITLED TO CREDIT ON EACH NEWLY IMPOSED CONSECUTIVE SENTENCE FOR PRISON TIME ALREADY SERVED ON THE ORIGINAL CONCURRENT SENTENCES?
We answer the question in the affirmative and certify conflict with our sister court’s decision in Gisi v. State, 948 So. 2d 816 (Fla. 2d DCA 2007), rev. granted, 952 So. 2d 1189 (Fla.2007).
Rabedeau was originally convicted of three counts of lewd and lascivious conduct — all second degree felonies. For those convictions, he was ordered to serve three concurrent two-year terms of community control, followed by three concurrent thirteen year terms of probation. He subsequently violated his community control and was sentenced to three concurrent five year prison terms, followed by three concurrent nine year terms of probation. After Rabedeau completed his prison term, the State filed an affidavit alleging that he had violated several conditions of his probation. Rabedeau ultimately entered a guilty plea to the violation of probation charges. The trial court sentenced Rabe-deau to three consecutive ten year prison terms. Rabedeau was given credit for the five years already served in prison as to only one of the three counts.
Rabedeau subsequently filed a motion to correct sentence pursuant to Florida Rule of Criminal Procedure 3.800(b). He contended he was entitled to five years of prison term credit on each of the three counts. Bound by the Gisi decision, the trial court denied Rabedeau’s motion.
Upon violating the probationary portion of a split sentence, a defendant is entitled, on resentencing, to credit for time served on the incarcerative portion. See Singletary v. Slay, 688 So. 2d 319 (Fla.1997); Turner v. State, 967 So. 2d 962 (Fla. 1st DCA 2007); Swain v. State, 845 So. 2d 314 (Fla. 2d DCA 2003). Here, Rabedeau was serving a split sentence on three different felony offenses. Because his sentences ran concurrently, Rabedeau completed the incarcerative portion of each sentence. Accordingly, he is entitled to credit on each sentence.
We disagree with Gisi’s conclusion that acceptance of the defendant’s argument would “elevate a legal fiction into a reality.” Id. at 819. By its very nature, concurrent sentences enable a defendant to serve two or more sentences at a single time. Consider, for example, if Rabedeau had originally been sentenced to three concurrent five year prison terms mthout probation to follow. Upon serving the five years in prison, Rabedeau would clearly be found to have completed his five year prison sentence as to each of the three felony offenses, not just as to one offense. Such a result would not be considered an elevation of a legal fiction into reality even though the defendant served five, not fifteen, years in prison.
REVERSED and REMANDED for Re-sentencing; CONFLICT CERTIFIED.
SAWAYA and TORPY, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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State v. Rabedeau, 2 So. 3d 191 (Fla. 2009)…PER CURIAM. This case is before the Court for review of the decision of the Fifth District Court of Appeal in Rabedeau v. State, 971 So. 2d 913 (Fla. 5th DCA 2007). The district court certified that its decision is in direct conflict with the decision of the Second District Court of Appeal in Gisi v. State, 948 So. 2d 816 (Fla. 2d DCA 2007). Rabedeau, 971 So. 2d at 914. We have jurisdiction…
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Gisi v. State, 4 So. 3d 613 (Fla. 2009)…ORIGINAL CONCURRENT SENTENCES? Id. at 820. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. We have resolved this issue and answered the certified question in the affirmative in our review and approval of the decision in Rabedeau v. State, 971 So. 2d 913 (Fla. 5th DCA 2007). See State v. Rabedeau, 2 So. 3d 191 (Fla. 2009). Accordingly, for the reasons set out in Rabedeau, we answer the certified question in the affirmative, quash the decision under review and remand for further proceedings consisten…
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Kovaleski v. State, 1 So. 3d 254 (Fla. 4th DCA 2009)…is accordingly without merit. We do agree that appellant should have received credit for time served for each of his fifteen year consecutive sentences after re-trial, and that the court erred in not giving that credit. He cites Rabedeau v. State, 971 So. 2d 913 (Fla. 5th DCA 2007), review granted, 975 So. 2d 429 (Fla.2008), in which the defendant was sentenced to three concurrent terms of five years, followed by three concurrent nine year probationary terms. After release, he violated probation and was sen…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Singletary v. Genorval Slay, 688 So. 2d 319 (Fla. 1997)
- Richard v. Pruitte, 845 So. 2d 314 (Fla. 2d DCA 2003)
- Broom v. State, 948 So. 2d 816 (Fla. 1st DCA 2007)
- Gisi v. State, 948 So. 2d 816 (Fla. 2d DCA 2007)
- Floridians for a Level Playing Field v. Floridians Against Expanded Gambling, 952 So. 2d 1189 (Fla. 2007)
- Salerno v. State, 967 So. 2d 962 (Fla. 5th DCA 2007)