Rodriguez v. State, 95-287

• Decision Date: 23 August 1995
• Docket Number: No. 95-287,95-287
• Parties: 20 Fla. L. Weekly D1890 Isabelle RODRIGUEZ, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 682

658 So.2d 682

20 Fla. L. Weekly D1890

Isabelle RODRIGUEZ, Appellant, v. The STATE of Florida, Appellee.

No. 95-287.

District Court of Appeal of Florida,

Third District.

Aug. 23, 1995.

An Appeal from the Circuit Court for Monroe County; J. Jefferson Overby, Judge.

Bennett H. Brummer, Public Defender, and Rosa C. Figarola, Asst. Public Defender, for appellant.

Robert A. Butterworth, Atty. Gen., and Richard L. Polin, Asst. Atty. Gen., for appellee.

Before BARKDULL, HUBBART and NESBITT, JJ.

PER CURIAM.

The state concedes error in the trial court failing to credit the appellant with time served awaiting a probation hearing. See Reed v. State, 616 So.2d 592 (Fla. 4th DCA 1993); Morgan v. State, 528 So.2d 991 (Fla. 4th DCA 1988); Richards v. State, 521 So.2d 292 (Fla. 1st DCA 1988); McCray v. State, 517 So.2d 770 (Fla. 2d DCA 1988); section 921.161(1), Florida Statutes. We also find error in failing to credit time served against community control rather than against probation. See and compare Fraser v. State, 602 So.2d 1299 (Fla.1992). Therefore the sentence of community control followed by probation is vacated and the matter is returned to the trial court for proper sentencing.

Reversed and remanded with directions.