Barnishin v. State, 1D05-0608.
Decision Date | 05 April 2006 |
Docket Number | No. 1D05-0608.,1D05-0608. |
Citation | 927 So.2d 68 |
Parties | Michael BARNISHIN, Appellant, v. STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
Nancy A. Daniels, Public Defender; Terry Carley, Assistant Public Defender, Tallahassee, for Appellant.
Charlie Crist, Attorney General; Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.
Michael Barnishin appeals revocation of his probation in two cases and the failure to give credit for jail time on the second of two consecutive sentences then imposed. We affirm the revocation of probation, but vacate the second sentence, and remand with directions that proper jail credit be awarded.
At issue are probationary split sentences. See Franklin v. State, 545 So.2d 851, 853 (Fla.1989) ( ). Mr. Barnishin was entitled to credit for all time served on each sentence, upon resentencing after probation was revoked. See Van Thompson v. State, 771 So.2d 593, 594 (Fla. 1st DCA 2000).
Convicted on no contest pleas of two felonies, possession of a firearm by a convicted felon and dealing in stolen property, Mr. Barnishin was initially placed on two years' community control in each case. In time, community control was revoked in each case, reinstated, then revoked again.
After the second revocation of community control, he was placed on felony drug offender probation in both cases for eighteen months, on condition that he undergo residential treatment for drug addiction, and remain in jail pending placement in a treatment program. In addition, he was sentenced to time served: He received concurrent sentences of seventy-four days' imprisonment, offset by seventy-four days' jail credit on each sentence.
He began, then decided to abandon, the drug treatment program. At the ensuing probation revocation hearing, his own testimony established that he deliberately violated condition (3) of his probation by changing his residence without the consent of his probation officer; and condition (12) by "failing to successfully complete or remain in drug/alcohol residential treatment program." (The trial court found that the state failed to prove a third allegation.)
After revoking probation in both cases, the trial court resentenced him: In No. 2003CF003872A ( ), he was sentenced to three years' imprisonment with 135 days' credit for time served. In No. 2003CF003982A ( ), he was sentenced to a consecutive term of five years' imprisonment with only two days' credit for time served. .
Defense counsel filed a motion to correct sentencing error under Rule 3.800(b)(2), arguing, in effect, that "in imposing the sentence on count 2 [here a single count in a separate case], the trial court erred in not awarding him credit . . ., as the court had done in respect to the sentence on count 1 [here a single count in a separate case]" because, "since he originally received concurrent ... sentences to be followed by probation, the time spent in [custody] related to both charges, thus entitling him to credit ... on both charges." Jones v. State, 633 So.2d 482, 483 (Fla. 1st DCA 1994). The trial court denied the motion.
Section 921.161(1), Florida Statutes (2004), directs that any person sentenced must receive credit for all time spent in jail prior to the imposition of sentence. See Crompton v. State, 728 So.2d 1188, 1189 (Fla. 1st DCA 1999) (). But the precise legal consequences of spending time in jail before initial sentencing can remain unclear until acquittal or sentencing. If a defendant is acquitted of all charges, of course, his prosecution will result in no sentence against which time spent in jail must be credited under section 921.161(1). If convicted of a single offense, the defendant is entitled to credit for time he spent in jail before any incarcerative sentence was pronounced.
If convicted of multiple offenses, the defendant must be given credit only on the first of consecutive sentences. When consecutive sentences are imposed, "the defendant `is not entitled to have his jail time credit pyramided by being given credit on each sentence for the full time he spends in jail awaiting disposition.'" Daniels v. State, 491 So.2d 543, 545 (Fla.1986) (emphasis omitted) (quoting Martin v. State, 452 So.2d 938, 938-39 (Fla. 2d DCA 1984)). See also Bell v. State, 573 So.2d 10, 11 (Fla. 5th DCA 1990). On the other hand, when a defendant is entitled to presentence jail-time credit against concurrent sentences, jail time must be credited against each concurrent sentence. See Daniels, 491 So.2d at 545. When sentences are imposed concurrently, the defendant receives credit on each sentence for time spent in jail before sentencing.
Mr. Barnishin spent time in jail following his arrest for the probation violations that led to the resentencing. This final increment is analogous to time spent in jail before sentencing initially occurs....
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