Cook v. State
| Decision Date | 23 November 1994 |
| Docket Number | No. 83193,83193 |
| Parties | 19 Fla. L. Weekly S608 Paul R. COOK, Petitioner, v. STATE of Florida, Respondent. |
| Court | Florida Supreme Court |
Nancy A. Daniels, Public Defender, and Kathleen Stover, Asst. Public Defender, Second Judicial Circuit, Tallahassee, for petitioner.
Robert A. Butterworth, Atty. Gen., James W. Rogers, Sr. Asst. Atty. Gen., and Wendy S. Morris, Asst. Atty. Gen., Tallahassee, for respondent.
We review Cook v. State, 635 So.2d 70 (Fla. 1st DCA 1994), in which the court certified a question of great public importance. We have jurisdiction pursuant to article V, section 3(b)(4) of the Florida Constitution.
In June of 1989, Paul R. Cook was convicted of five counts in three cases--grand theft, forgery, and three counts of passing worthless checks ("1989 offenses"). He was placed on concurrent three-year probationary periods for each count. In January of 1990, Cook was convicted of four new counts--credit card fraud, grand theft, and two counts of forgery ("1990 offenses"), and admitted to violating the terms of his probation for the 1989 offenses. Cook was sentenced to concurrent four-and-a-half-year prison terms for the 1990 offenses. 1 In addition, Cook's probation for the 1989 offenses was revoked and he was again given concurrent three-year probationary periods for each of the 1989 offenses, to run consecutively to the four-and-a-half-year prison term. Cook was released from prison in June of 1991, having served his sentence for the 1990 offenses, and began serving probation for the 1989 offenses. In November of 1991, Cook was found to have violated his probation--he had been arrested in Alabama for writing a bad check and had been arrested in Florida for battery of a police officer. 2 Cook's probation was revoked and he was sentenced to concurrent three-and-a-half-year prison terms for the 1989 offenses. 3 The sentencing judge denied Cook's request that he be given credit for the four and a half years he had served on the 1990 offenses. Cook appealed.
The district court of appeal affirmed the denial of credit, relying on State v. Tripp, 591 So.2d 1055 (Fla. 2d DCA 1991), review of which was then pending in this Court. Cook v. State, 609 So.2d 175 (Fla. 1st DCA 1992). In reviewing State v. Tripp, this 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." Tripp v. State, 622 So.2d 941, 942 (Fla.1993). Based on our holding in Tripp, we quashed the district court's affirmance in this case and remanded for further proceedings consistent with Tripp. Cook v. State, 622 So.2d 979, 980 (Fla.1993).
On remand, the district court of appeal again affirmed the denial of credit, noting that Cook v. State, 635 So.2d 70, 71 (Fla. 1st DCA 1994). The district court concluded that this Court "did not intend its holding in Tripp to be applied in every case in which probation is imposed on one offense consecutive to a sentence of incarceration on another offense, without consideration of the circumstances involved, particularly circumstances like those presented in the case at issue." Id. Finally, the district court stated that "because the language of the Tripp opinion contains no explicit limitation of the holding to situations in which the original incarcerative term(s) and probationary term(s) were imposed using a single scoresheet, we certify this question to the supreme court as a matter of great public importance." Id.
While the district court did not formulate the precise question to be addressed by this Court, it clearly framed the certified question as a query of whether Tripp applies to situations in which a defendant is sentenced to incarcerative terms and "resentenced" to probationary periods using a single scoresheet. 4 Cook contends that this case falls within the contours of Tripp. We agree.
In Tripp, this Court held that where a defendant is sentenced to an incarcerative term on one offense, to be followed by a probationary period on another offense, credit for time served on the incarcerative term must be awarded on a sentence imposed after revocation of probation. Tripp, 622 So.2d at 942. In so holding, we recognized that a single guidelines scoresheet "must be utilized for all offenses pending before [a] court for sentencing," and that where a single scoresheet is used for multiple offenses, those offenses must continue to "be treated in relation to each other, even after a portion of the sentence has been violated." Id. Accordingly, where a defendant is sentenced to prison to be followed by probation for multiple offenses, and ultimately violates that probation, that defendant's cumulative sentence may not exceed the guidelines range of the original scoresheet. Id. Otherwise, trial judges could structure sentences in such a manner as to circumvent the guidelines. Id.
The State argues that Tripp is distinguishable from this case because Cook was "resentenced" to probation on the 1989 offenses. 5 We find this argument to be unpersuasive.
At his 1990 sentencing, Cook was sentenced to concurrent four-and-a-half-year prison terms for the 1990 offenses to be followed by concurrent three-year probationary periods for the 1989 offenses. The sentencing judge used, as is required, a single scoresheet. Fla.R.Crim.P. 3.701(d)(1). Cook's total sentence at the 1990 sentencing hearing could not have exceeded the permitted range of his 1990 scoresheet unless the sentencing judge gave a written reason. Fla.R.Crim.P. 3.701(d)(12). Additionally, Cook's total sentence at the 1991 sentencing hearing could not have exceeded the permitted range of his 1990 scoresheet and a two-cell increase without a written reason. Fla.R.Crim.P. 3.701(d)(14); see also Williams v. State, 594 So.2d 273, 275 (Fla.1992). The fact that Cook was "resentenced" to probation on the 1989 offenses is a distinction without a difference. This Court's reasoning in Tripp is equally applicable to the factual scenario presented in this case.
We therefore conclude that Cook should have been credited with the four and a half years he served for the 1990 offenses when he was sentenced in 1991 for violating his probation on the 1989 offenses for a second time. 6 Accordingly, we quash the decision below. 7
It is so ordered.
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