Hardenbrook v. State, 1D06-0310.

• Decision Date: 09 April 2007
• Docket Number: No. 1D06-0310.,1D06-0310.
• Citation: 953 So.2d 717
• Parties: Timothy HARDENBROOK, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

953 So.2d 717

Timothy HARDENBROOK, Appellant, v. STATE of Florida, Appellee.

No. 1D06-0310.

District Court of Appeal of Florida, First District.

April 9, 2007.

Nancy A. Daniels, Public Defender, and Phil Patterson, Assistant Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General, and Felicia A. Wilcox, Assistant Attorney General, Tallahassee, for Appellee.

BENTON, J.

On this direct appeal from resentencing, Timothy Hardenbrook contends that the trial court erred in denying his motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800. He argues that he was not given enough credit for time he had spent in jail and, before he began the probationary portion of his probationary split sentence, in prison. We affirm.

On a plea of no contest to grand theft, he was sentenced in Bay County on April 7, 2000, to thirty months' imprisonment, to be followed by two years' probation. After he had served the prison term, he was released on probation, then arrested in Baker County on a new charge. While incarcerated in Baker County, on April 5, 2003, he was served with an arrest warrant issued on the basis of an affidavit alleging the offense in Baker County violated the conditions of his probation on the Bay County charge.

Convicted in Baker County, he served the sentence for that offense, which expired on November 15, 2005, before he was transported to Bay County. There probation was revoked and he was resentenced for grand theft. He claims that he is entitled to jail credit on the Bay County charge for the time that he was incarcerated in Baker County after he was served with the Bay County arrest warrant, a claim the trial judge rejected below.

Credit for the same jail time must be given on more than one sentence only when the sentences are concurrent. See Gethers v. State, 838 So.2d 504, 506 (Fla.2003) ("[W]hen, pursuant to section 921.161(1), a defendant receives pre-sentence jail-time credit on a sentence that is to run concurrently with other sentences, those sentences must also reflect the credit for time served.") (quoting Daniels v. State, 491 So.2d 543, 545 (Fla.1986)); Daniels, 491 So.2d at 545 ("We distinguish this situation from one in which the defendant does not receive concurrent sentences on multiple charges; in such a case the defendant `is not entitled to have his jail time credit pyramided by being given credit on each sentence for the full time he spends in jail awaiting disposition.'") (quoting Martin v. State, 452 So.2d 938, 938-39 (Fla. 2d DCA 1984)); Dawson v. State, 816 So.2d 1123, 1123 (Fla. 1st DCA 2002) ("A defendant is deemed to be in custody on separate warrants from different counties, and therefore entitled to jail credit on both convictions unless the defendant receives consecutive sentences . . . .") (emphasis supplied).

Mr. Hardenbrook concedes that his sentences are not concurrent but argues that they are not consecutive, either. He argues that there is a third category of sentences, into which his sentence falls, a category he denominates "free-standing." He argues that, because he completed the "free-standing" sentence imposed in Baker County before he was resentenced in Bay County, he is entitled to jail credit against both sentences for the time he spent in the Baker County jail. We reject the argument that the Bay County and Baker County sentences are not consecutive, and the notion that a sentence can be neither consecutive nor concurrent but "free-standing." See § 921.16(1), Fla. Stat. (2005) ("Sentences of imprisonment for offenses not charged in the same indictment, information, or affidavit shall be served consecutively unless the court directs that two or more of the sentences be served concurrently."). While it may not be immediately clear that a sentence is consecutive, see Barnishin v. State, 927 So.2d 68, 71 (Fla. 1st DCA 2006) ("Until-for the first time upon revocation of his probation—the trial court imposed consecutive sentences, the precise contours of the credit for the time he spent in jail between arrest and resentencing were not clear."), there can be no doubt here.

The present case does not involve guidelines sentences imposed simultaneously on the basis of a single scoresheet. Cf. Cook v. State, 645 So.2d 436, 438 (Fla.1994) ("We . . . 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"); Ingram v. State, 818 So.2d 636, 636 (Fla. 1st DCA 2002) ("Pursuant to Tripp v. State, 622 So.2d 941 (Fla.1993), the appellant is entitled to prior prison credit for time served on the first offense when he violated probation for the second offense, since he was sentenced for both at the same time. See also Hodgdon v. State, 789 So.2d 958 (Fla.2001)."); Moiter v. State, 644 So.2d 154, 155 (Fla. 2d DCA 1994) (remanding, on the same grounds as Ingram, for "the trial court to correct the written sentences to reflect the credit for time served in prison and in jail"); Silvestrini v. State, 633 So.2d 1143, 1144-45 (Fla. 2d DCA 1994). Mr. Hardenbrook is not entitled to additional credit against the Bay County (grand theft) sentence for the time he was incarcerated on the Baker County offense, because these sentences were consecutive.

In addition, Mr. Hardenbrook argues here as below that the trial court neglected to give him credit for time he spent in prison for grand theft before he was released on probation. The trial court acknowledged this omission in the original resentencing and filed an amended judgment and sentence in which it required the Department of Corrections to give Mr. Hardenbrook credit for prior prison time.¹ See § 921.0017, Fla. Stat. (2005) (providing that when probation is revoked, the sentencing court shall order credit for time served in state prison or county jail, upon recommitment to the Department of Corrections, and "shall direct the Department of Corrections to compute and apply credit" for prior prison credit). The second resentencing thus corrected the error, and mooted the claim of failure to give credit for time spent in prison before probation.

Once the sentencing judge has awarded a defendant prior prison credit,...