Girtman v. State, 92-799
| Decision Date | 21 May 1993 |
| Docket Number | No. 92-799,92-799 |
| Citation | 617 So.2d 1168 |
| Parties | 18 Fla. L. Week. D1293 George William GIRTMAN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James B. Gibson, Public Defender and James T. Cook, Asst. Public Defender, Daytona Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Myra J. Fried, Asst. Atty. Gen., Daytona Beach, for appellee.
George Girtman appeals from the habitual violent felony offender sentence imposed following his plea of nolo contendere to one count each of armed burglary of a dwelling, possession of burglary tools, possession of a weapon in the commission of a felony, and resisting an officer without violence. Girtman argues his record did not qualify him for habitual offender status. We reverse.
On July 10, 1984, Girtman was released from prison on a sexual battery conviction to begin a 10 year parole period. On February 28, 1989, Girtman was convicted of resisting an officer without violence and was placed on probation for 6 months. On May 3, 1989, Girtman was arrested on a parole violation warrant based on the conviction of resisting an officer without violence. Girtman spent 15 days in jail, then was released on his own recognizance pending the decision of the Parole Commission concerning whether revocation of his parole was in order. On June 21, 1989, the Commission entered its order releasing Girtman from custody on the matter of the parole violation:
WHEREAS, it appears after due examination, that there is not at this time probable cause or reasonable grounds to believe that he has violated the conditions of his release to the degree that revocation of the release would be required by this Commission.
NOW THEREFORE, it is ordered that the above name be hereby released from custody on the matter of parole violation and is restored to supervision.
On January 9, 1991, Girtman committed the offenses to which he pled no contest in the instant case.
At the sentencing hearing in this case, the State successfully argued that Girtman qualified as a habitual violent felony offender because he had been released from the Orange County jail (where he had been held for 15 days on the parole violation warrant) within five years of his commission of the instant offenses. The State reasoned that the county jail time constituted "other commitment" under section 775.084(1)(a)2, Florida Statutes (1991) 1 and the county jail time was directly related to the sexual battery offense for which the defendant was originally placed on parole. The trial court found that Girtman met the requirements of section 775.084(1)(a)2 and sentenced him as a habitual violent felony offender.
Girtman argues that the time he spent in the county jail while the Parole Commission was considering the severity of his parole violation (for committing a misdemeanor) did not constitute "other commitment" as contemplated by section 775.084(1)(a)2. He cites Allen v. State, 487 So.2d 410 (Fla. 4th DCA 1986) where the defendant was sentenced as a habitual offender based on the fact that he was released from probation within five years prior to the offense for which he was currently being sentenced. The court determined that "other commitment" as used in the statute did not include probation:
The state would have the court believe that the word "commitment" as used in this statute may include probation. If we examine the statutory sentence whose meaning we are trying to fathom, we find reference to five years from the defendant's release "on parole or otherwise." Probation more logically falls into the "or otherwise" than into the class of conditions denominated "other commitment." It would make no sense to consider release on parole as the significant date from which to count the time to the next offense, but in case of release on probation, to have the clock start ticking only when the period of probation has come to an end. The principal, though not only, difference, between probation and parole is that the first is determined by the court prior to incarceration--if any--whereas the second is determined by the parole commission. In sum, in the expression "on parole or otherwise" the legislature was speaking of parole, probation, reprieve or expiration of one's term of incarceration. In the expression "prison sentence or other commitment," the legislature included, conceivably, commitment to a mental hospital or to a facility for...
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Cassista v. State
...only actual release from a State prison sentence” and not the physical release from a state prison facility. See also Girtman v. State, 617 So.2d 1168 (Fla. 5th DCA 1993) (holding that temporary custodial detention pending resolution by parole commission of parole violation charge did not c......
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Williams v. State
...community control, probation, or parole violation, does not qualify as an "other commitment" under the statute. See Girtman v. State, 617 So.2d 1168, 1169 (Fla. 5th DCA 1993) (holding that "other commitment" refers to a formal commitment to the Department of Corrections, not temporary custo......
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Smith v. Moore, 1D00-2323.
...of community control did not constitute an "other commitment." In support of this argument, Appellant cites to Girtman v. State, 617 So.2d 1168, (Fla. 5th DCA 1993). In Girtman, the court held that "other commitment" refers to a more formal commitment to the Department of Corrections which ......
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Brinson v. State, 2D02-3361.
...release from a state prison sentence, not release from temporary confinement that happens to be in state prison. Cf. Girtman v. State, 617 So.2d 1168 (Fla. 5th DCA 1993) (holding that temporary custodial detention pending resolution by the Parole Commission of parole violation charge did no......