Dupree v. State

• Decision Date: 13 March 1998
• Docket Number: No. 97-3752,97-3752
• Parties: 23 Fla. L. Weekly D695 James D. DUPREE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 968

708 So.2d 968

23 Fla. L. Weekly D695

James D. DUPREE, Appellant, v. STATE of Florida, Appellee.

No. 97-3752.

District Court of Appeal of Florida,

First District.

March 13, 1998.

James D. Dupree, Defuniak Springs, pro se.

No appearance for Appellee.

PER CURIAM.

James D. Dupree appeals the circuit court's denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. For the reasons discussed below, we affirm.

In February 1992, Dupree entered a plea of guilty to charges of arson, burglary of a structure, and grand theft. He was sentenced to community control for a term of 24 months on each count, to run concurrently, followed by probation for 36 months on each count, to run concurrently. He was also ordered to pay court costs of $300.00, costs of investigation of $30.00 to the State Attorney's Office, perform 400 hours of community service, make restitution, receive substance abuse evaluation and counseling, and submit to random urinalysis. Dupree violated these conditions on three occasions. Following the first two violations, in May 1992 and March 1994, he was restored to community control on August 6, 1992, and May 4, 1994, respectively. Following the third violation, which occurred in June 1995, Dupree was sentenced to a term of imprisonment of 4 1/2 years on each count, to run concurrently, with credit for time served. This sentencing took place on January 22, 1997.

In his 3.850 motion, Dupree asserted four claims for relief. First, he asserted that the trial court erred in delegating responsibility for determining the amount of his monthly restitution payments to the community control officer. As the circuit court explained in its order denying Dupree's motion, the plea agreement Dupree signed stipulated that the community control officer would determine the monthly restitution payments. The agreement also stated that if Dupree disagreed with the determined amount, he could request a hearing and have the judge determine the amount. Dupree never objected to this condition and never requested that the court review the amount of his payments; therefore, he cannot now complain that his payments were too high. See Wilson v. State, 407 So.2d 1078, 1079 (Fla. 1st DCA 1982) ("While the court in this case should have specified the amount of restitution due, it is clear that appellant made no objection to the condition of restitution at the time it was set.... Additionally we note that he made one payment toward restitution, and presents no evidence that he ever objected on the point in question to his probation officer or during the probation revocation hearing. His concession to the propriety of the condition and the amount of restitution is implicit. Appellant has failed to demonstrate any prejudice."). Further, Dupree does not assert that the community control officer ever modified or increased his payment schedule. Cf. Jordan v. State, 610 So.2d 616, 618 (Fla. 1st DCA 1992) ("Establishment of a payment schedule is a judicial responsibility rather than a supervisory function properly administered by a probation officer.... Consequently, Jordan's probation officer exceeded his authority by substantially increasing the monthly amount Jordan was required to pay, more than doubling the original amount."); White v. State, 606 So.2d 1265, 1266 (Fla. 1st DCA 1992) ("[T]he original condition 9 is facially invalid as it purports to delegate to the probation officer the right to determine the rate of repayment of the restitution.").

In his second claim, Dupree asserted that the trial court erred by not awarding him credit for time spent on community control when it imposed new terms of community control following his violations. Although the circuit court correctly stated that the cases Dupree relied on for this assertion, State v. Summers and State v. Roundtree, were decided after May 4, 1994, the last date on which he was resentenced to community control, this does not dispose of Dupree's claim. In State v. Summers, the supreme court held as follows:

[U]pon revocation of probation credit must be given for time previously served on probation toward any newly-imposed probationary term for the same offense, when necessary to ensure that the total term of probation does not exceed the statutory maximum for that offense. We note, however, that where the total term of probation will not exceed the statutory maximum for a single offense, the court need not give credit for the time already served on probation. For example, when a defendant who had been given two years' probation for a third-degree felony violates probation after serving one year, the judge can impose up to three additional years of probation without giving credit for the one year already served because the total term of probation would not exceed the five year statutory maximum.

642 So.2d 742, 744 (Fla.1994). In State v. Roundtree, the supreme court approved an opinion from the Fourth District Court of Appeal which certified the following question:

MUST A TRIAL COURT, UPON REVOCATION OF PROBATION (AND/OR COMMUNITY CONTROL), CREDIT PREVIOUS TIME SERVED ON PROBATION (AND/OR COMMUNITY CONTROL) TOWARD A NEWLY IMPOSED PROBATIONARY TERM SO THAT THE TOTAL PROBATIONARY TERM SERVED AND TO BE SERVED DOES NOT EXCEED THE MAXIMUM SENTENCE ALLOWED BY LAW?

644 So.2d 1358, 1358-59 (Fla.1994). The court indicated that the Fourth District's decision was "in harmony with our decision in Summers." Roundtree, 644 So.2d at 1359. Further, the Florida Supreme Court has also indicated that the rule announced in Summers applies to violations that occurred prior to that ruling. See Francois v. State, 695 So.2d 695, 697 n. 2 (Fla.1997) ("Summers was decided after Francois' violations, but it applies here because 'disposition of a case on appeal is made in accordance with the law in effect at the time of the appellate court's decision' unless a substantive right is altered.)" (quoting State v. Lavazzoli, 434 So.2d 321, 323 (Fla.1983)). In both Summers and Roundtree, however, the imposed terms at issue were terms of probation and neither case concerned the situation challenged by Dupree in the instant 3.850 motion, i.e., successive terms of community control.

"The statutory maximum for a sentence of community control is two years." McGehee v. State, 688 So.2d 1008, 1009 (Fla. 1st DCA 1997); see § 948.01(4), Fla. Stat. (1991) ("When community control or a program of public service is ordered by the court, the duration of community control supervision or public service may not be longer than the sentence that could have been imposed if the offender had been committed for the offense or a period not to exceed 2 years, whichever is less."). The first two times Dupree violated the conditions of his community control, the trial court imposed new sentences of two years' community control. This was error. "[W]here a defendant who was originally sentenced to two years community control violates that community control, upon resentencing a new sentence of two years is illegal." Mills v. State, 623 So.2d 840, 841 n. 3 (Fla. 5th DCA 1993); see Cooper v. State, 672 So.2d 638 (Fla. 5th DCA 1996) (holding that defendant who was originally sentenced to 18 months of community control, and upon violation was resentenced to 24 months of community control, could not upon further violation be resentenced to additional 24 months of community control without any credit for previous time spent on community control); Sipp v. State, 604 So.2d 576 (Fla. 5th DCA 1992) (holding that where defendant was initially placed on two years of community control and, after violation, was again placed on two years community control, defendant's sentence was illegal because total term of community control exceeded two years). "Upon resentencing for the same offense, the defendant must be given credit for time served in jail and on community control so that the total sentence for community control on the same offense does not exceed the two year maximum." Mills, 623 So.2d at 841 n. 3.

Nevertheless, Dupree did not challenge the trial court's reimposition of two years' community control until after he violated the terms of that community control and the trial court sentenced him to a term of imprisonment. "[O]ne who takes advantage of an...