Russell v. State, 95-3591

• Decision Date: 26 June 1996
• Docket Number: No. 95-3591,95-3591
• Citation: 676 So.2d 1026
• Parties: 21 Fla. L. Weekly D1484 Charles RUSSELL, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1026

676 So.2d 1026

21 Fla. L. Weekly D1484

Charles RUSSELL, Appellant, v. The STATE of Florida, Appellee.

No. 95-3591.

District Court of Appeal of Florida,

Third District.

June 26, 1996.

Bennett H. Brummer, Public Defender, and Louis Campbell, Assistant Public Defender, for appellant.

Robert A. Butterworth, Attorney General, and Consuelo Maingot, Assistant Attorney General, for appellee.

Before NESBITT, JORGENSON and COPE, JJ.

COPE, Judge.

Charles Russell appeals an order denying his motion to correct illegal sentence. We affirm.

Defendant-appellant Russell first argues that he is entitled to be granted credit against his prison sentence for time which he previously served on probation. He interprets the Florida Supreme Court's recent decision in Waters v. State, 662 So.2d 332 (Fla.1995), as requiring such credit. We disagree.

Defendant was placed on probation for possession of cocaine, a third degree felony having a legal maximum term of five years. On three subsequent occasions, defendant violated probation. On the first two occasions, the trial court again placed defendant on probation, but on the third occasion the court sentenced defendant to a term of four and one-half years in prison.

Following the Florida Supreme Court's announcement of its decision in Waters, defendant filed a motion to correct illegal sentence. Defendant contends that under Waters, he is entitled to be given credit against his prison sentence for the time which he previously served on probation. According to a calculation made by the trial court at an earlier stage on this case, the defendant satisfactorily completed three years and two months on probation. Defendant interprets Waters to say that the total of the defendant's prison sentence (in this case, four and one-half years) and the time previously served on probation (in this case, three years and two months) cannot exceed the legal maximum sentence (in this case, five years). Defendant contends that he must be given appropriate credit against his prison term so that the sum of the prison term and the three years and two months previously served on probation do not exceed the five-year legal maximum.

Defendant's position is incorrect. The decision in Waters applies where, after revocation of probation, the defendant is given a split sentence of incarceration followed by probation. Waters v. State, 662 So.2d at 333. Under that circumstance, " 'If the trial court includes probation as part of a sentence upon revocation of probation, the trial court must give credit for any time previously served on probation if the new period of probation together with other sanctions (including jail and prison credit) and the time previously served on probation total more than the statutory maximum for the underlying offense.' " Id. (citation omitted; emphasis added).

In the present case, upon revocation of probation the trial court sentenced defendant to four and one-half years in prison. This is an ordinary prison sentence, not a split sentence. The Waters decision has no application to this case. The four and one-half year period of incarceration is less than the five-year legal maximum and accordingly is a legal sentence.

Defendant in substance requests that he be given credit against his prison term for time previously served on probation. The Supreme Court in Waters and in State v. Summers, 642 So.2d 742 (Fla.1994) pointed out that such credit is specifically prohibited by statute. "No part of the time that the defendant is on probation or in community control shall be considered as any part of the time that he shall be sentenced to serve." § 948.06(2), Fla. Stat., quoted in Waters v. State, 662 So.2d at 333 n. 1; State v. Summers, 642 So.2d at 743. Probation is a minimal restraint on liberty compared with incarceration, and a probationary period is not considered to be a "sentence." See State v. Summers, 642 So.2d at 744. Accordingly the statute provides that upon violation of probation, the trial court may impose any sentence which might have originally been imposed, § 948.06(1), Fla. Stat., and the time previously spent on probation will not be credited against a period of incarceration. The trial court correctly denied the relief requested by defendant. ¹

Defendant also suggests that this interpretation creates an anomaly by which the defendant could serve nearly double the legal maximum under supervision. For example, for a third degree felony a defendant could serve almost five years on probation, then have an affidavit of violation of probation filed near the end of the five-year term, and then be sentenced to five years imprisonment, thus resulting in almost ten years of legal constraint. See Summers v. State, 625 So.2d 876, 880 n. 6 (Fla. 2d DCA 1993) (en banc), approved, State v. Summers, 642 So.2d at 744. This is not an anomaly, but on the contrary is the explicit legislative intent. Section 775.082, Florida Statutes, establishes legal maximum penalties, and must be read in pari materia with Section 948.06 Florida Statutes, which regulates probation. Section 775.082 specifies that "A person who has been convicted of any other designated felony may be punished as follows ... For a felony of the third degree, by a term of imprisonment not exceeding 5 years." Id. § 775.082(3)(d) (emphasis added). The probation statute provides that upon revocation of probation, a term of incarceration can be imposed without giving credit for time previously served on probation. § 948.06(2), Fla. Stat. The availability of incarceration for the legal maximum term serves as a sanction for violation of probation.

As stated in Hall v. Bostic, 529 F.2d 990 (4th Cir.1975), cert. denied, 425 U.S. 954, 96 S.Ct. 1733, 48 L.Ed.2d 199 (1976):

There is nothing unusual in the denial by ... law of credit for probation or parole time against a prison sentence. It is common to both state and federal probation and parole systems. The validity of such denial has been universally recognized both in federal and state decisions....

....

... A person does not serve a prison sentence while on probation or parole any more than he does while free on bail. In both instances, there are certain restrictions generally on the person's movements but the person's condition ... is 'very different from that of confinement in a prison.'

Id. at 991-92 (footnotes and citations omitted).

Defendant next argues that he is entitled to be released because by his calculation, his probationary term expired prior to the filing of the third affidavit of violation of probation. Defendant argues that the trial court lost jurisdiction of him, and consequently could not entertain the third affidavit of violation of probation, nor sentence defendant to imprisonment based on that violation.

This claim is procedurally barred. In 1994 defendant filed a previous motion to correct illegal sentence under Rule 3.800(a). The motion was filed shortly after the Florida Supreme Court announced its decision in State v. Summers. Defendant argued that based on Summers, he "should not have been subject to court supervision beyond 5 years of the...