Bransfield v. State, No. 93-2895

• Court: Court of Appeal of Florida (US)
• Writing for the Court: W. SHARP
• Citation: 657 So.2d 1191
• Parties: 20 Fla. L. Weekly D1288 Mark Robert BRANSFIELD, Appellant, v. STATE of Florida, Appellee.
• Docket Number: No. 93-2895
• Decision Date: 26 May 1995

Page 1191

657 So.2d 1191 20 Fla. L. Weekly D1288 Mark Robert BRANSFIELD, Appellant,
v.
STATE of Florida, Appellee. No. 93-2895. District Court of Appeal of Florida,
Fifth District. May 26, 1995.

Page 1192

James B. Gibson, Public Defender, and Kenneth Witts, Asst. Public Defender, Daytona Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, Belle B. Turner, Asst. Atty. Gen., and Anthony J. Hall, Certified Legal Intern, Daytona Beach, for appellee.

W. SHARP, Judge.

Bransfield appeals from the trial court's denial of his motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800. He originally had been sentenced in 1987 to 30 months in prison for aggravated assault, ¹ and to 3 years on probation for a firearms charge. ² He served his prison term but violated his probation. He was sentenced on both charges to 4 1/2 years in prison, followed by 10 years on probation. We affirm, in part.

Bransfield argues the trial court erred because it used a scoresheet in sentencing him, after revocation of probation, which differed from the one used at his initial sentencing. In the first sentencing, aggravated assault, a third degree felony, was used as the primary offense. In the second sentencing, the firearms charge, a second degree felony, was used as the primary offense. The latter scoresheet was correct. Fla.R.Crim.P. 3.701.d. In resentencing a defendant after violation of probation, the trial judge may use a revised, corrected scoresheet. See Roberts v. State, 644 So.2d 81 (Fla.1994); Scherwitz v. State, 644 So.2d 85 (Fla.1994).

Bransfield also argues he has received a sentence which exceeds the statutory maximum for a second degree felony--15 years. He adds the 3 years probation he received on his first sentence together with the new 4 1/2 year prison term, followed by the new 10 year probation term, to arrive at a total time of 17 1/2 years. Although the court gave Bransfield credit for 133 days he spent in prison, it gave him no credit for time spent on probation.

In Phillips v. State, 651 So.2d 203 (Fla. 5th DCA 1995), this court held that State v. Summers, 642 So.2d 742 (Fla.1994) does not apply to a case like this one, where a term of imprisonment is imposed after a defendant violates probation. Rather, sections 948.06(1) and (2) control. They provide that after probation is revoked, the trial court can sentence the defendant to any sentence which it might have originally imposed, and...