Gardner v. State, 92-1865

• Decision Date: 05 May 1995
• Docket Number: No. 92-1865,92-1865
• Parties: 20 Fla. L. Weekly D1095 Stacey Bernard GARDNER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 933

656 So.2d 933

20 Fla. L. Weekly D1095

Stacey Bernard GARDNER, Appellant, v. STATE of Florida, Appellee.

No. 92-1865.

District Court of Appeal of Florida,

First District.

May 5, 1995.

Nancy A. Daniels, Public Defender, Kathleen Stover, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., Joe S. Garwood and Charlie McCoy, Asst. Attys. Gen., Dept. of Legal Affairs, Tallahassee, for appellee.

ERVIN, Judge.

This appeal involves challenges to sentences imposed in four different cases below after appellant's fourth revocation of either probation or community control. We are asked to consider whether appellant's sentences are illegal, because probation was imposed concurrent with incarceration; whether they are illegal under Tripp v. State, 622 So.2d 941 (Fla.1993); and whether they are violative of the Florida Youthful Offender Act. We conclude that sentences are illegal on all three points and therefore reverse and remand for resentencing.

By four separate informations filed between February 22, 1988 and July 11, 1988, appellant was charged with eight felony offenses, all of which were alleged to have occurred between January 24, 1988 and April 25, 1988. Case No. 88-518 involved two counts of third degree grand theft. Case No. 88-1146 charged one count of third degree grand theft auto, Case No. 88-2026 charged one count of third degree grand theft auto, and Case No. 88-2874 charged three counts of second degree dealing in stolen property and one count of third degree burglary of a conveyance.

With the exception of the burglary count in the final case, which was nolle prossed, appellant pleaded nolo contendere to all charges. He was initially sentenced in all cases on September 22, 1988, to specified terms including probationary periods. ¹ Following the filing of affidavits of violation of probation and/or community control on four separate occasions, appellant's probation and/or community control was revoked and he was resentenced on November 30, 1989; March 30, 1990; February 1, 1991; and May 22, 1992. Each time appellant was sentenced, the sentences for all counts within a case were directed to be served concurrently, and the sentences imposed for each case were directed to be served concurrently to all the other cases.

In regard to Case No. 88-518, appellant was initially sentenced as a youthful offender on the two grand theft counts to concurrent terms of 30 months of imprisonment followed by 30 months of probation, with credit of 116 days for time served. This sentence was within the sentencing guidelines, which indicated a permitted sentencing range of 12 to 30 months of imprisonment. Appellant completed the term of incarceration on May 15, 1989, and began serving the probationary term. Following the first revocation of probation, he was sentenced on November 30, 1989, to two years of community control, which was also revoked, and appellant was sentenced on March 30, 1990, to two years of probation with the first 11 months, 29 days, to be spent at the Tallahassee Probation and Restitution Center. Following the third revocation, appellant was sentenced on February 1, 1991, to two years of community control, with credit for 30 months, 130 days time served. After the fourth revocation, appellant was sentenced on May 22, 1992, to 12 months of probation.

Appellant received the same sentences in Case No. 88-1146, although his credits for time served were slightly different.

In Case No. 88-2026, imposition of sentence was initially withheld on the grand theft count and appellant was placed on probation for 3 1/2 years. Appellant received the same sentences indicated above for the first, second and third revocations. After the fourth revocation, appellant was sentenced on May 22, 1992, to 3 1/2 years of probation.

In Case No. 88-2874, appellant received the same sentences imposed in Case No. 88- 2026, with the exception of the final sentence of May 22, 1992, which was five years in prison followed by five years of probation, with credit for 571 days time served. As the time to appeal all but the last sentences imposed on May 22, 1992 has long since expired, we are concerned only with the legality of these final sentences.

Under the first point, appellant contends that his sentences are illegal, because the court imposed concurrent terms of probation and incarceration, and he cites Clemons v. State, 629 So.2d 1067, 1068 (Fla. 2d DCA), review denied, 639 So.2d 976 (Fla.1994), which holds that it is reversible error to impose probation and incarceration concurrently. See also Mitchell v. State, 594 So.2d 823 (Fla. 1st DCA 1992) (incarcerative portions of sentences must be served in a continuous period, to be followed immediately by the nonincarcerative portions). The reasons for this rule are the impossibility of complying with probation while in prison and the underlying concept of probation as rehabilitation, not punishment. Clemons, 629 So.2d at 1068 (citing Barr v. State, 474 So.2d 417 (Fla. 2d DCA 1985)).

Here, the May 22, 1992 written sentencing orders merely provide that the probationary sentences imposed in Case Nos. 88-518, 88-1146 and 88-2026 are to be concurrent to each other and Case No. 88-2874, but the sentencing transcript clearly indicates that the probationary terms imposed in the first three cases are to run concurrent with the probation in Case No. 88-2874. Because the probation imposed in Case No. 88-2874 was directed to be served subsequent to the incarceration imposed in that case, and because the probationary terms in the other three cases were orally directed to be served concurrent with the probationary term in Case No. 88-2874, there was no Clemons violation. As, however, the written order is ambiguous as to whether the probationary terms are to run concurrently with the incarceration imposed in Case No. 88-2874, we reverse and remand with directions to conform the written sentencing orders to the oral pronouncement, thereby clearly indicating that the probationary terms are to be served concurrent to the probation imposed in Case No. 88-2874.

Under the second point, appellant contends that he is entitled, under Tripp v. State, 622 So.2d 941 (Fla.1993), to credit for the original 30-month sentences imposed in Case Nos. 88-518 and 88-1146 against the May 22, 1992 sentence imposed in Case No. 88-2874, which was five years of incarceration followed by five years of probation. Tripp involved a situation in which the defendant was sentenced to straight incarceration for one offense and to a consecutive term of probation for a second offense. He completed the sentence of incarceration for the first offense and violated the terms of his probation. Upon revocation of probation, the trial court sentenced Tripp to incarceration, but gave him credit for the previous prison term. The appellate court reversed the award of credit for time served, holding that Tripp was not entitled to credit because his original sentences were imposed for separate convictions. Nonetheless, the court expressed concern that its holding might conflict with the spirit of the sentencing guidelines.

Our supreme court, after noting that one guidelines scoresheet must be utilized for all offenses pending before the court for sentencing, found that the total incarceration imposed, both originally and upon revocation, exceeded and was therefore inconsistent with the guidelines. ² The court therefore 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, 622 So.2d at 942 (footnote omitted).

Although appellant's sentences here are not straight incarceration in one case followed by consecutive terms of probation in another case, as in Tripp, the initial probationary term imposed in the fourth case, No. 88-2874, was necessarily consecutive to the incarceration imposed in the first two cases Nos. 88-518 and 88-1146. Appellant is therefore entitled to credit for the initial 30-month terms on the incarceratory sentence imposed on May 22, 1992, in Case No. 88-2874. If appellant is not given such credit, then the guidelines will be exceeded without a written departure reason, as was done in Tripp. This can be seen by the fact that appellant's original guidelines sentence was 12 to 30 months, or 2 1/2 years. With four bump-ups, the permitted range is 5 1/2 to 7 years. If appellant is not given credit for the original 2 1/2 years, his five-year incarceratory sentence results in 7 1/2 years in prison, which exceeds the guidelines.

Under the final point, appellant complains that his sentences violate the Florida Youthful Offender Act, sections 958.011-.15, Florida Statutes (1987). Although the sentencing forms in Case Nos. 88-518 and 88-1146 clearly indicate that appellant was sentenced as a youthful offender, the sentencing forms for Case Nos. 88-2026 and 88-2874 do not. Moreover, the judge's oral pronouncement of sentence in regard to those two cases does not mention youthful offender sentencing. However, the September 22, 1988 sentencing transcript reflects that the prosecutor agreed to youthful offender sentencing, and the court apparently complied with that agreement, as evidenced by comments that the total period of supervision was six years (2 1/2 of prison followed by 3 1/2 of probation). Thus, it appears that appellant was sentenced as a youthful offender in all four cases.

Section 958.04, Florida Statutes (1987), authorizes a trial court to sentence a defendant who is between the ages of 18 and 21 as a youthful offender. The court may place a youthful offender on probation or in a community control program, impose a split sentence of probation or community control after completion of a specified period of incarceration, or impose a period of...