Straughan v. State, 93-817

• Decision Date: 06 May 1994
• Docket Number: No. 93-817,93-817
• Citation: 636 So.2d 845
• Parties: 19 Fla. L. Weekly D1009 Scott Allan STRAUGHAN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 845

636 So.2d 845

19 Fla. L. Weekly D1009

Scott Allan STRAUGHAN, Appellant, v. STATE of Florida, Appellee.

No. 93-817.

District Court of Appeal of Florida Fifth District.

May 6, 1994.

James B. Gibson, Public Defender, and James T. Cook, Asst. Public Defender, Daytona Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Wesley Heidt, Asst. Atty. Gen., Daytona Beach, for appellee.

DIAMANTIS, Judge.

Scott Allan Straughan appeals, claiming that his sentence is illegal because it extends the period of his state supervision beyond the maximum five-year period allowed by law for a third-degree felony. We agree and, therefore, reverse.

In February 1992, the trial court placed appellant on two years drug-offender probation for the third-degree felony of possession of cannabis in excess of 20 grams. ¹ After appellant had completed approximately one year of probation, he violated the terms of his probation. As a result, the trial court revoked his probation and resentenced him to a term of two years community control followed by three years drug-offender probation. Because appellant had already served approximately one year of probation, the trial court's order placing him on two years community control followed by three years of drug-offender probation resulted in the imposition of a sentence which exceeds the statutory maximum five-year period of state supervision authorized for a third-degree felony.

In Ogden v. State, 605 So.2d 155 (Fla. 5th DCA 1992), we explained that a sentence of probation coupled with community control cannot extend beyond the statutory maximum for the offense charged because, otherwise, probation or community control could be extended ad infinitum beyond the statutory maximum each time probation or community control is revoked. We concluded that the legislature could not have intended such a result. Id. at 158. See also Summers v. State, 625 So.2d 876 (Fla. 2d DCA 1993) (en banc ); Conrey v. State, 624 So.2d 793 (Fla. 5th DCA 1993); Moore v. State, 623 So.2d 795 (Fla. 1st DCA 1993); Raulerson v. State, 620 So.2d 265 (Fla. 5th DCA 1993); Kolovrat v. State, 574 So.2d 294 (Fla. 5th DCA 1991); Servis v. State, 588 So.2d 290 (Fla. 2d DCA 1991). Contra Quincutti v. State, 540 So.2d 900 (Fla. 3d DCA 1989).

Our courts have similarly ruled that, where a trial court, after having adjudicated a defendant guilty for violating his probation, either extends or modifies the terms of probation instead of revoking probation, the statutory maximum must be observed. Schertz v. State, 387 So.2d 477 (Fla. 4th DCA 1980). We find no cogent reason to draw a distinction between the situation where the trial court revokes probation and the situation where the trial court merely extends or modifies probation. As the second district has noted, to do so would elevate form over substance. Summers v. State, 625 So.2d at 879-80 n. 5.

We recognize also that, where a defendant has had his or her probation or community control extended to the statutory maximum after one or more revocations, the trial court still has the option to impose a sentence of imprisonment for any subsequent violation. See, e.g., Williams v. State, 594 So.2d 273 (Fla.1992) (sentence may be bumped up one cell for each successive violation of probation); Ramey v. State, 546 So.2d 1156 (Fla. 5th DCA 1989) (following revocation of probation, court may impose "true split sentence" of five years imprisonment suspended after 3 1/2 years of probation). ²

As the court did in Summers, we certify this issue as a matter of great public importance:

MUST A TRIAL COURT, UPON REVOCATION OF PROBATION, CREDIT PREVIOUS TIME SERVED ON PROBATION TO ANY NEWLY IMPOSED TERM OF COMMUNITY CONTROL AND PROBATION SO THAT THE TOTAL PERIOD OF COMMUNITY CONTROL AND PROBATION DOES NOT EXCEED THE STATUTORY MAXIMUM FOR A SINGLE OFFENSE?

Sentence VACATED; cause REMANDED.

PETERSON, J., concurs specially, with opinion.

W. SHARP, J., dissents, with opinion.

PETERSON, Judge, concurring specially.

I join in the result obtained by Judge Diamantis because of the prior decisions of this court and because the issue will be placed at rest by certifying the question to the supreme court as this court has previously done in Wardell v. State, 631 So.2d 1130 (Fla. 5th DCA 1994), and as the second district has done in Summers v. State, 625 So.2d 876 (Fla. 2d DCA 1993).

The case primarily relied upon by Judge Diamantis in reaching his conclusion, Ogden v. State, 605 So.2d 155 (Fla. 5th DCA 1992), in turn relied upon Fraser v. State, 602 So.2d 1299 (Fla.1992). I believe that the reliance was misplaced. In Fraser, the supreme court carefully distinguished between probation and community control in allowing credit for the latter. ¹ Fraser dealt specifically with the injustice that would result where a defendant, after receiving and successfully completing an erroneous sentence of community control, is notified, through no fault of his own, that his sentence was an illegal downward departure. Fraser did not concern the penalty to be imposed subsequent to a violation and revocation of probation, but was fashioned in that particular case to prevent an unfair result.

I analyze section 948.06, Florida Statutes (1993) in order to attempt to answer Judge Sharp's inquiry as to why credit for time served must be given when probation is imposed following a violation even though the same credit is not required if a term of incarceration is imposed. The observation was made in Ogden that, if credit is not allowed, a trial court could extend probation ad infinitum beyond the statutory maximum for incarceration each time probation is revoked. The Ogden court stated it was doubtful that the legislature intended such a result.

It is reasonable to conclude that the drafters of section 948.06, Florida Statutes, never contemplated that a sentencing judge would revoke probation and then reimpose probation upon a defendant who has committed a crime and has already been given the chance to avoid the more serious penalty. The last two sentences of section 948.06(1) provide:

After [the probation violation] hearing, the court may revoke, modify, or continue the probation or community control or place the probationer into community control. 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.

Thus, if a probationer violates the conditions of probation, arguably the trial court has three options under the statute:

1. Revoke probation and place the defendant on community control, or impose any sentence that might have been originally imposed;

2. Modify the probation to include appropriate new conditions and even a condition of jail time.

3. Continue the original probation without revoking it, but not beyond the maximum time of incarceration prescribed for the offense.

The key word used in subsection (1) is "sentence." If probation or community control is revoked, a court shall "impose any sentence which it might have originally imposed." I do not think the statute equates the terms "probation" and "sentence." This conclusion is supported by section 948.01(2) which distinguishes between probation and a sentence in authorizing a court to "stay and withhold the imposition of sentence upon [a] defendant and ... place him upon probation." See also Brown v. State, 302 So.2d 430 (Fla. 4th DCA 1974). The sentencing alternative of straight probation is simply not available after a revocation of probation. If, after a violation of probation has been proven, probation is still desirable and justified in the opinion of the trial judge, the probation should be continued or modified, not revoked and reimposed.

W. SHARP, Judge, dissenting.

I respectfully dissent. In my view, the sentence which Straughan received after his probationary sentence was revoked, was legally permissible and should be affirmed by us.

In 1991, Straughan pled nolo contendere to possession of contraband, a third degree felony. Adjudication was withheld, and he was placed on probation (in a drug program) for two years, on the condition that he serve eight days in county jail. While still on probation, in January of 1993, Straughan was arrested for violating his probation by possessing contraband. He entered a nollo plea to his probation violation.

At that time, the recommended, permissive sentencing guidelines bracket would have permitted the court to sentence Straughan to any non-state prison sanction up to 3 1/2 years in prison. For a third degree felony, the maximum statutory sentence is 5 years. ¹ The court elected to revoke Straughan's probation.

The court sentenced Straughan to 2 years on community control, to be followed by 3 years on probation in a drug offense program. The judge threatened to sentence Straughan to a straight prison sentence if he were unable to meet the conditions of those programs and remain drug-free. But prior to that, the judge said Straughan should have the benefit of the Bridge Substance Abuse Treatment Program (a drug rehabilitation program available to persons on community control--not in prison).

After probation is revoked, a person can be resentenced to any sentence which would have been legal initially. See Tripp v. State, 622 So.2d 941, 942 (Fla.1993); Poore v. State, 531 So.2d 161 (Fla.1988); Villery v. Fla. Parole & Probation, 396 So.2d 1107, 1109 (Fla.1980); State v. Holmes, 360 So.2d 380 (Fla.1978). See also State v. Arnette, 604 So.2d 482 (Fla.1992) (involving youthful offender treatment, citing section 948.06(1)). Section 948.06(1), Florida Statutes (1991) expressly so provides:

If probation ... is revoked, the court shall adjudge the probationer or offender guilty of the offense...