Phillips v. State, No. 94-837

CourtCourt of Appeal of Florida (US)
Writing for the CourtDAUKSCH
Parties20 Fla. L. Weekly D485 Clifford PHILLIPS, Appellant, v. STATE of Florida, Appellee.
Docket NumberNo. 94-837
Decision Date24 February 1995

Page 203

651 So.2d 203
20 Fla. L. Weekly D485
Clifford PHILLIPS, Appellant,
v.
STATE of Florida, Appellee.
No. 94-837.
District Court of Appeal of Florida,
Fifth District.
Feb. 24, 1995.

Page 204

James B. Gibson, Public Defender, and Kenneth Witts, Asst. Public Defender, Daytona Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Steven J. Guardiano, Asst. Atty. Gen., Daytona Beach, for appellee.

DAUKSCH, Judge.

Clifford Phillips, appellant, pled guilty to violating probation in Case Nos. 91-916, 91-430 and 91-708. Appellant also pled guilty in Case No. 93-35339 to criminal mischief and battery.

Appellant contends that the trial court erred in Case Nos. 91-430 and 91-708 by not crediting him with the time served on probation when the new periods of probation were imposed. Appellant violated probation and community control in Case Nos. 91-430 and 91-708 on several occasions. As a result of the most recent violations, appellant pled guilty to the violations and was sentenced in Case No. 91-708 to five years in the Department of Corrections followed by five years of probation. In Case No. 91-430, appellant received three years of probation for Count One and three years of probation for Count Two to run concurrent to each other. Appellant has served approximately three years of non-incarcerative sanctions for each case. Appellant was sentenced to over five years of non-incarcerative sanctions for each case.

Appellee contends that the trial court did not commit error because it is not the proper entity charged with determining the amount of credit that appellant is entitled to. Appellee argues that unlike credit for time served in jail, there is no statutory requirement on a trial court to make this determination. Appellee argues that credit for time served on probation or community control is a matter best left to the defendant's probation or community control officer. Appellee further argues that if a defendant disputes the amount of credit awarded, he may seek administrative review by filing a grievance pursuant to Florida Administrative Code section 33-24.005. However, because no credit was awarded, a grievance procedure pursuant to Florida Administrative Code section 33-24.005 is not the appropriate remedy.

This court has held that it is not error for the Department of Corrections to determine the amount of gain time previously served. See Wilson v. State, 639 So.2d 1019 (Fla. 5th DCA 1994); Green v. State, 636 So.2d 830 (Fla. 5th DCA 1994); Wilson v. State, 603 So.2d 93 (Fla. 5th DCA 1992). However, this court in both Wilson (1992) and Green recognized that although it is not error for the trial court to permit the Department, instead of the court, to look up the amount of gain time previously earned, it is error for the trial court to fail to award gain time for previous incarceration. Green, 636 So.2d at 831; Wilson, 603 So.2d at 94. Although Green and Wilson (1992) dealt with a trial court's failure to give full credit for time served on the incarcerative portion of a sentence, the principle should apply to a trial court's failure to award credit for time served on a non-incarcerative sentence.

The Supreme Court of Florida in State v. Summers, 642 So.2d 742 (Fla.1994), accepted jurisdiction to answer the following question:

Must a trial court, upon revocation of probation, credit previous time served on probation toward any newly-imposed term of probation so that the total probationary term is subject to...

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5 practice notes
  • State v. Williams, No. 85784
    • United States
    • United States State Supreme Court of Florida
    • January 25, 1996
    ...the term provided by general law." See Fla.R.Crim.P. 3.701(d)(13) (1988 Sentencing Guidelines Commission Notes); Phillips v. State, 651 So.2d 203, 205 (Fla. 5th DCA 1995) (both community control and probation terms together cannot exceed the statutory maximum In short, Williams' sentence wa......
  • Toomajan v. State, No. 5D01-31.
    • United States
    • Court of Appeal of Florida (US)
    • June 8, 2001
    ...prohibits court from crediting time served on probation or community control toward a sentence of incarceration); Phillips v. State, 651 So.2d 203 (Fla. 5th DCA 1995) (under section 948.06(2), Florida Statutes, when probation or community control is revoked, no part of the time served may b......
  • Phillips v. State, No. 95-943
    • United States
    • Court of Appeal of Florida (US)
    • October 20, 1995
    ...Tallahassee, and Belle B. Turner, Assistant Attorney General, Daytona Beach, for Appellee. PER CURIAM. AFFIRMED. See Phillips v. State, 651 So.2d 203 (Fla. 5th DCA 1995). But see Gonzales v. State, 658 So.2d 1091 (Fla. 4th DCA DAUKSCH, THOMPSON and ANTOON, JJ., concur. ...
  • Bransfield v. State, No. 93-2895
    • United States
    • Court of Appeal of Florida (US)
    • May 26, 1995
    ...court gave Bransfield credit for 133 days he spent in prison, it gave him no credit for time spent on probation. In Phillips v. State, 651 So.2d 203 (Fla. 5th DCA 1995), this court held that State v. Summers, 642 So.2d 742 (Fla.1994) does not apply to a case like this one, where a term of i......
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5 cases
  • State v. Williams, No. 85784
    • United States
    • United States State Supreme Court of Florida
    • January 25, 1996
    ...the term provided by general law." See Fla.R.Crim.P. 3.701(d)(13) (1988 Sentencing Guidelines Commission Notes); Phillips v. State, 651 So.2d 203, 205 (Fla. 5th DCA 1995) (both community control and probation terms together cannot exceed the statutory maximum In short, Williams' sentence wa......
  • Toomajan v. State, No. 5D01-31.
    • United States
    • Court of Appeal of Florida (US)
    • June 8, 2001
    ...prohibits court from crediting time served on probation or community control toward a sentence of incarceration); Phillips v. State, 651 So.2d 203 (Fla. 5th DCA 1995) (under section 948.06(2), Florida Statutes, when probation or community control is revoked, no part of the time served may b......
  • Phillips v. State, No. 95-943
    • United States
    • Court of Appeal of Florida (US)
    • October 20, 1995
    ...Tallahassee, and Belle B. Turner, Assistant Attorney General, Daytona Beach, for Appellee. PER CURIAM. AFFIRMED. See Phillips v. State, 651 So.2d 203 (Fla. 5th DCA 1995). But see Gonzales v. State, 658 So.2d 1091 (Fla. 4th DCA DAUKSCH, THOMPSON and ANTOON, JJ., concur. ...
  • Bransfield v. State, No. 93-2895
    • United States
    • Court of Appeal of Florida (US)
    • May 26, 1995
    ...court gave Bransfield credit for 133 days he spent in prison, it gave him no credit for time spent on probation. In Phillips v. State, 651 So.2d 203 (Fla. 5th DCA 1995), this court held that State v. Summers, 642 So.2d 742 (Fla.1994) does not apply to a case like this one, where a term of i......
  • Request a trial to view additional results

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