State v. Summers
| Decision Date | 22 September 1994 |
| Docket Number | No. 82632,82632 |
| Citation | 642 So.2d 742 |
| Parties | 19 Fla. L. Weekly S449 STATE of Florida, Petitioner, v. Christopher Gene SUMMERS, Respondent. |
| Court | Florida Supreme Court |
Robert A. Butterworth, Atty. Gen. and Dale E. Tarpley, Asst. Atty. Gen., Tampa, for petitioner.
James Marion Moorman, Public Defender and Deborah K. Brueckheimer, Asst. Public Defender, Bartow, for respondent.
We have for review Summers v. State, 625 So.2d 876 (Fla. 2d DCA 1993). We accepted jurisdiction to answer the following question which was certified to be of great public importance: 1
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 THE STATUTORY MAXIMUM FOR A SINGLE OFFENSE?
Upon revocation of Summers' probation and imposition of a new term of probation, the trial court in this case refused to give Summers credit for previous time served on probation for the same offense. Summers appealed, arguing that the new term of probation exceeded the statutory maximum when added to the time he had already served on probation. The Second District Court of Appeal agreed that Summers was entitled to credit for time already served on probation for the same offense. Thus, the court reversed and remanded with directions that Summers be given credit for the time already served toward the most recently imposed probationary term for the same offense. The district court then certified the above question for our review. Id. at 880.
We agree with the district court below that, upon revocation of probation, the time a probationer has already served on probation for a given offense must be credited toward any new term of probation imposed for that offense, when necessary to ensure that the total term of probation does not exceed the statutory maximum for that offense. The district court is correct that our decision in State v. Holmes, 360 So.2d 380 (Fla.1978), does not mandate a contrary holding. As noted by the district court, Holmes did not deal with a new probationary term imposed after revocation of probation. Rather, that decision dealt with the initial imposition of a probationary split sentence. In that context, this Court held that the combined terms of incarceration and probation may not exceed the statutory maximum. 360 So.2d at 383. We went on to explain that if the probationary portion of the split sentence is subsequently revoked, a trial court may impose any sentence it might have originally imposed minus jail time already served as part of the same sentence but that no credit may be given for the time spent on probation. 360 So.2d at 383. The district court is correct that Holmes should be read to mean "only that the time already spent on probation may not be credited toward the new sentence, i.e., the term of incarceration imposed." 625 So.2d at 878. It should not be read to hold that time previously served on probation may not be credited toward a new probationary term after revocation of probation.
Likewise, section 948.06, Florida Statutes (1987), 2 cannot be read to preclude the crediting of time already served on probation in this case. Section 948.06 provides in pertinent part:
(1) ... If such probation or community control is revoked, the court shall adjudge the probationer or offender guilty of the offense charged and proven or admitted, unless he has previously been adjudged guilty, and impose any sentence which it might have originally imposed before placing the probationer or offender on probation or into community control.
(2) 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.
Like our decision in Holmes, section 948.06(2) does not address the question presented here. It speaks only to the situation where a "sentence" is imposed upon revocation of probation or community control. A probationary period is not a "sentence." See Villery v. Florida Parole & Probation Comm'n, 396 So.2d 1107 (Fla.1980); see also Committee Note, Fla.R.Crim.P. 3.790. As noted by the court below, to treat a...
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Landeverde v. State
...by reason of further testimony?" Under Florida law, a probationary period is generally not considered a "sentence." See State v. Summers, 642 So.2d 742, 744 (Fla.1994)(citing Villery v. Florida Parole & Probation Comm'n, 396 So.2d 1107 (Fla.1980) and Committee Note, Fla. R.Crim. P. 3.790). ......
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Madrigal v. State, 96-0128
...the five year statutory maximum. See State v. Holmes, 360 So.2d 380, 383 (Fla.1978), holding limited on other grounds by State v. Summers, 642 So.2d 742 (Fla.1994). The state concedes that appellant was erroneously sentenced on Count III to 72 months incarceration to be followed by 16 month......
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Young v. State
...a sentence of incarceration, 5 credit cannot be given for time spent on probation. Holmes, 360 So.2d at 383; see also State v. Summers, 642 So.2d 742, 743 (Fla.1994). Likewise, credit cannot be given for time served on community control. See Ogden v. State, 605 So.2d 155, 158 (Fla. 5th DCA ......
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Francois v. State
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