Latham v. State, 91-2045

• Decision Date: 17 March 1992
• Docket Number: No. 91-2045,91-2045
• Citation: 596 So.2d 140
• Parties: Gregory Allen LATHAM, Appellant, v. STATE of Florida, Appellee. 596 So.2d 140, 17 Fla. L. Week. D781
• Court: Florida District Court of Appeals

Page 140

596 So.2d 140

Gregory Allen LATHAM, Appellant, v. STATE of Florida, Appellee.

No. 91-2045.

596 So.2d 140, 17 Fla. L. Week. D781

District Court of Appeal of Florida First District.

March 17, 1992.

Nancy A. Daniels, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., and Gypsy Bailey, Asst. Atty. Gen., Tallahassee, for appellee.

JOANOS, Chief Judge.

Appellant seeks review of the sentences imposed in connection with his violation of probation and his conviction of a new grand theft charge. We reverse and remand for resentencing.

On November 21, 1989, appellant pled guilty to grand theft, and was sentenced to twenty-two months in state prison, to be followed by thirty-eight months probation. Appellant was released from prison on March 16, 1990. On April 12, 1990, an affidavit of violation of probation was filed against him, alleging his failure to comply with the reporting requirements of his probation. Subsequently, an amended affidavit was filed, alleging that appellant admitted to theft of jewelry from a residence. On April 22, 1991, appellant pled nolo contendere to the new grand theft charge, and to the violation of probation.

The sentencing guidelines scoresheet prepared for both offenses placed appellant in the recommended sentencing range of community control or twelve to thirty months incarceration. At sentencing, the trial court revoked appellant's probation, and imposed a sentence of three and one-half years, less credit for time served on the 1989 grand theft conviction with the remainder of the sentence, if any, to be on probation. As to the 1990 grand theft charge, appellant was adjudicated guilty and placed on community control for two years, followed by probation for three years. The sentence on the 1990 conviction was to be served consecutively to the 1989 sentence.

The written sentencing document filed in connection with the 1989 case imposes a sentence of three and one-half years followed "by a period of remainder of probation," and awards credit for 178 days. The written probation order filed in connection with the 1989 case committed appellant to the custody of the Department of Corrections for three and one-half years, "with credit for 135 days cjt," with the notation that appellant had served twenty-two months on the same case. This order further states that after appellant served all of the three and one-half year sentence, he was to be placed on probation for two years.

Appellant seeks reversal of the sentencing plan, urging that (1) he was denied credit for the twenty-two months served on the front end of the 1989 split sentence; (2) the combined three and one-half years incarceration and two years probation on the 1989 probation revocation constituted an illegal sentence; and (3) his probationary period was interrupted by a period of community control. The state agrees appellant is entitled to credit for the full period of the incarcerative portion of his probationary split sentence, but submits the trial court properly ordered the credit due, which must be determined by the Department of Corrections. The state further agrees the total sentence imposed in the 1989 case exceeds the statutory maximum and should be reduced to five years, and the imposition of incarceration/probation, followed by community control/probation, is improper and requires resentencing.

We agree that the ambiguities or errors in the sentencing plan devised by the trial court require reversal and remand for resentencing. For example, it is well settled that a defendant who is resentenced on a probation violation following release from the incarcerative portion of a probationary split sentence, is entitled to credit for the total sentence, notwithstanding that the defendant received an early release. State v. Green, 547 So.2d 925, 926 (Fla.1989); Bolden v. State, 557 So.2d 630 (Fla. 1st DCA 1990); Copeland v. State, 553 So.2d...