Moore v. Stephens, 5D01-539.
| Decision Date | 18 January 2002 |
| Docket Number | No. 5D01-539.,5D01-539. |
| Citation | 804 So.2d 575 |
| Parties | Michael W. MOORE, etc., et al., Appellants, v. Roosevelt STEPHENS, Jr., Appellee. |
| Court | Florida District Court of Appeals |
Wendy Benner-Leon, Assistant General Counsel, Department of Corrections, Tallahassee, for Appellants.
Roosevelt Stephens, Jr., Lowell, pro se.
ON MOTION FOR CLARIFICATION
Pursuant to appellant's motion for clarification, we withdraw our prior opinion issued in this case on November 16, 2001, and substitute the following in its stead.
This case involves the issue of whether a prisoner whose probation on a "true split sentence" is revoked can receive credit for time served on the first part of his sentence against the suspended portion of his sentence. The Department of Corrections appeals a writ of mandamus ordering it to give Roosevelt Stephens credit for time served on his first sentence against his current sentence. The Department argues that Stephens is not entitled to receive credit for prior prison time served when, upon revocation of probation, he was sentenced to the suspended term of a true split sentence. We agree.
The facts are not disputed. In 1995, Stephens was sentenced as a habitual offender to 15 years in state prison, 13 years suspended, followed by five years probation. Both Stephens and the state agree that this was a "true" split sentence. Stephens served the two year unsuspended portion of his sentence as follows: 67 days of original county jail credit, 498 days of time served in prison, 165 days of additional gain time, a total of 730 days, or two years.
After his release from prison, Stephens began serving probation. Upon violating his probation, he was sentenced to serve the previously suspended 13 year prison term. The court awarded Stephens credit for 530 days, which consisted of 411 days time served on the violation of probation, 67 days original jail credit and 52 days additional jail credit. The court further ordered that Stephens "be allowed credit for all time previously served on this count in the Department of Corrections prior to sentencing."
Stephens returned to state prison. Pursuant to the court's order, the Department awarded Stephens credit for 530 days but did not award him the 498 days prison time he had previously served. The Department also forfeited the 165 days gain time awarded under the original incarceration pursuant to section 944.28(1), Florida Statutes.
Stephens filed administrative appeals which were denied. Stephens then filed a petition for writ of mandamus in the circuit court, alleging that the Department failed to award him credit for the 498 plus 67 days prior prison time. The Department responded, arguing that it had applied the 67 days credit to his sentence, but that Stephens was not entitled to the additional 498 days credit because his sentence was a "true split sentence."
The trial court issued a writ of mandamus ordering the Department to apply the 498 days prison credit against his 13 year sentence. The court analyzed the issue as follows:
Upon review of Petitioner's July 17, 1995 judgment and sentence, it does not appear that Petitioner was sentenced to 15 years, 13 years suspended conditioned upon completion of five years probation. Instead, Petitioner was sentenced to 15 years, 13 years suspended, followed by five years probation. Since the sentencing order does not clearly state that suspension of 13 years was conditional upon successful completion of probation, this Court cannot find that Petitioner's July 17, 1995 sentence was a "true" split sentence. Therefore, Roberts v. State does not apply. Additionally, Petitioner's September 24, 1999 judgement [sic] and sentence clearly states that Petitioner is entitled to credit against his 13 year sentence for "all time previously served on this count in the Department of Corrections prior to sentencing".
A "true" split sentence consists of a total period of confinement with part of that confinement suspended. Generally, the defendant is placed on probation for the suspended portion of the confinement. See Poore v. State, 531 So.2d 161, 164 (Fla.1988)
. For example, a sentence of 10 years incarceration, five years suspended with the defendant placed on probation is a "true" split sentence. The defendant would serve five years, then be placed on probation for five years.
In contrast, a "probationary" split sentence involves a period of incarceration followed by a period of probation. Poore at 164. An example would be a sentence of ten years incarceration followed by five years probation. Under this example, the defendant would serve ten years in prison and then five years probation. The key distinction between a "true" split sentence and a "probationary" split sentence is the presence of a suspended portion of incarceration in the "true" split sentence. See Franklin v. State, 545 So.2d 851, 852 (Fla.1989)
.
If the defendant violates the probationary portion of a "true" split sentence, a court may revoke his probation and impose either the suspended portion of incarceration or the original period of incarceration. See Johnson v. State, 641 So.2d 970 (Fla. 2d DCA 1994)
. If the court imposes the original period of incarceration, it must give the defendant credit for time served on the original, non-suspended portion of the sentence. Hobbs v. State, 702 So.2d 560 (Fla. 2d DCA 1997). In the example above, the defendant could be sentenced to the remaining five years incarceration, with no credit for time served on the first five years. Or, the court could sentence the defendant to the original ten year incarceration with credit for the time served on the original five year term. The end result is the same: the defendant should serve a total of ten years in either case. See Moore v. State, 755 So.2d 806 (Fla. 3d DCA 2000).
Additionally, section 921.0017, Florida Statutes, requires that:
Effective for offenses committed on or after January 1, 1994, if an offender's probation or community control is revoked and the offender is serving a split sentence pursuant to s. 948.01, upon recommitment to the Department of Corrections, the court shall order credit for time served in state prison or county jail only, without considering any type of gain-time earned before release to supervision, or any type of sentence reduction granted to avoid prison overcrowding, including, but not limited to, any sentence reduction resulting from administrative gain-time, provisional credits, or control release. The court shall determine the amount of jail-time credit to be awarded for time served between the date of arrest as a violator and the date of recommitment, and shall direct the Department of Corrections to compute and apply credit for all other time served previously on the prior sentence for the offense for which the offender is being recommitted. This section does not affect or limit the department's authority to forfeit gain-time under ss. 944.28(1) and 948.06(7).
In effect, the statute requires a defendant whose probation is...
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