Campbell v. State, s. 93-801

• Decision Date: 16 February 1994
• Docket Number: Nos. 93-801,93-802,s. 93-801
• Citation: 631 So.2d 390
• Parties: 19 Fla. L. Weekly D370 Colon CAMPBELL, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 390

631 So.2d 390

19 Fla. L. Weekly D370

Colon CAMPBELL, Appellant, v. STATE of Florida, Appellee.

Nos. 93-801, 93-802.

District Court of Appeal of Florida,

First District.

Feb. 16, 1994.

Nancy A. Daniels, Public Defender, and Jamie Spivey, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., and Amelia L. Beisner, Asst. Atty. Gen., Tallahassee, for appellee.

ZEHMER, Chief Judge.

Colon Campbell appeals from concurrent 15-year guidelines sentences imposed on two separate offenses following the revocation of his probation. He argues that the supreme court's decision in Tripp v. State, 622 So.2d 941 (Fla.1993), requires reversal and remand to allow credit for all time served on both offenses against the concurrent sentences imposed after revocation of probation. We agree.

Appellant was originally adjudicated guilty on an aggravated battery charge in case number 88-730 and sentenced to prison for a term of 4 years, to be followed by 6 months' probation. He was released from prison and soon thereafter violated probation during April 1990. His probation was revoked and he was sentenced to serve 6 months in county jail and then have his 6 months' probation reinstated. However, soon after his release from jail, Appellant was arrested on November 4, 1990, on new charges filed in case number 90-1087. He was adjudicated guilty of three charges--burglary of a dwelling, trespass after warning, and resisting an officer without violence--and sentenced in that case to 5 years in prison to be followed by 3 years' probation. In addition, his probation in case number 88-730 was ordered to be reinstated consecutive to his release from prison on the sentence in case number 90-1087.

In due course, in November 1992, Appellant was released from prison but again violated conditions of probation in both cases. At the revocation hearing, the trial court referred to a sentencing guidelines scoresheet that listed the several offenses in case number 90-1087 as primary and additional offenses, and the offense in case number 88-730 as a prior offense. The scoresheet reflected a total of 112 points, resulting in a permitted range cell of 3 1/2 to 7 years. However, the 3-cell bump-up authorized by rule 3.701(d)(14), Florida Rules of Criminal Procedure, based on the preceding three probation violations increased the permitted range to the cell prescribing 7 to 17 years. Pursuant to this cell, the court imposed concurrent 15-year sentences in each case. Further, the court allowed 4 1/2 years' credit for time served against the sentence imposed in case number 88-730, and 5 years' credit for time served against the sentence imposed in case number 90-1087, leaving 10 1/2 years to be served in the 1988 case and 10 years in the 1990 case. The court rejected defense counsel's argument that a total of 9 1/2 years should be applied against the guidelines sentence. Appellant argues that these circumstances are controlled by the supreme court's decision in Tripp, and that he is entitled to 9 1/2 years' credit for time served towards the 15-year guidelines sentence in each case.

In Tripp, the supreme court held that:

if a trial court imposes a term of probation on one offense consecutive to a sentence of incarceration on another offense, credit for time served on the first offense must be awarded on the sentence imposed after revocation of probation on the second offense. [Footnote omitted.]

622 So.2d at 942. In arriving at this holding the supreme court observed:

The purpose of the sentencing guidelines is "to establish a uniform set of standards to guide the sentencing judge in the sentence decision-making process" so as to eliminate unwarranted variation in sentencing. Fla.R.Crim.P. 3.701(b). One...