Phillips v. State, 94-837

Citation651 So.2d 203
Decision Date24 February 1995
Docket NumberNo. 94-837,94-837
Parties20 Fla. L. Weekly D485 Clifford PHILLIPS, Appellant, v. STATE of Florida, Appellee.
CourtCourt of Appeal of Florida (US)

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 statutory maximum for a single offense?

Id. at 743. The Supreme Court held that:

[U]pon revocation of probation credit must be given for time previously served on probation toward any newly imposed probationary term for the same offense, when necessary to ensure that the total term of probation does not exceed the statutory maximum for that offense.

Id. at 744. However, the court noted that:

... where the total term of probation will not exceed the statutory maximum for a single offense, the court need not give credit for the time already served on probation.

For example, when a defendant who had been given two years' probation for a third-degree felony violates probation after serving one year, the judge can impose up to three additional years of probation without giving credit for the one year already served because the total term of probation would not exceed the five year statutory maximum.

In Case No. 91-430 appellant pled guilty to two third degree felonies. A person convicted of a third degree felony can be sentenced to a term of imprisonment not to exceed five years. Sec. 775.082(3)(d), Fla.Stat. Appellant was sentenced in Case No. 91-430 to two concurrent terms of five years of probation. After violating probation, appellant was sentenced to two years of community control for Count One and two years of probation for Count Two. After violating community control and probation, appellant was sentenced to two concurrent terms of three years of probation. Because appellant was initially sentenced to two concurrent terms of five years of probation, the maximum term for the two third degree felonies, regardless of the additional terms imposed, when appellant was sentenced to two concurrent terms of three years of probation for violating probation in Case No. 91-430, appellant should have received credit for the time served on probation because the total term of probation for each offense exceeds the statutory maximum. Summers, 642 So.2d at 743.

In Case No. 91-708, appellant pled guilty to a second degree felony. A person convicted of a second degree felony can be sentenced to a term of imprisonment not to exceed fifteen years. Sec. 775.082(3)(c), Fla.Stat. Appellant was sentenced to two years of community control for Case No. 91-708. As a result of violating community control, appellant received two years of probation. Appellant then violated probation and as a result received two years of probation. The most recent violation of probation resulted in a sentence of five years in the Department of Corrections followed by five years of probation. Appellant was sentenced to a total of five years in the Department of Corrections, nine years of probation and two...

To continue reading

Request your trial
5 cases
  • State v. Williams
    • United States
    • Florida Supreme Court
    • 25 January 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 term).In short, Williams' sente......
  • Toomajan v. State, 5D01-31.
    • United States
    • Florida District Court of Appeals
    • 8 June 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, 95-943
    • United States
    • Florida District Court of Appeals
    • 20 October 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, 93-2895
    • United States
    • Florida District Court of Appeals
    • 26 May 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

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT