Summers v. State

Citation625 So.2d 876
Decision Date01 October 1993
Docket NumberNo. 91-03686,91-03686
Parties18 Fla. L. Weekly D2154 Christopher Gene SUMMERS, Appellant, v. STATE of Florida, Appellee.
CourtCourt of Appeal of Florida (US)

James Marion Moorman, Public Defender, and Stephen Krosschell, Asst. Public Defender, Bartow, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Elaine L. Thompson, Asst. Atty. Gen., Hollywood, for appellee.

EN BANC

DANAHY, Judge.

In this appeal, Christopher Gene Summers raises one issue concerning his conviction for grand theft and five issues concerning his sentencing upon revocation of probation. We find no merit in his contention that there was insufficient evidence to convict him of grand theft and therefore affirm this conviction and sentence (Circuit Court Case No. 91-8844). Of the five sentencing errors raised, three have no merit. 1 We agree with Summers' contentions concerning the remaining two issues. Accordingly, we reverse and remand for resentencing. In reversing we have elected, on our motion, to decide this appeal en banc to resolve an intradistrict conflict between Servis v. State, 588 So.2d 290 (Fla. 2d DCA 1991), and Smith v. State, 463 So.2d 494 (Fla. 2d DCA 1985). 2 In resolving this conflict we certify the question presented to the supreme court as one involving great public importance.

HABITUAL OFFENDER ENHANCEMENT

In Circuit Court Case Nos. 88-7827 and 88-14789, the trial court improperly enhanced the sentences pursuant to the Habitual Offender Statute, section 775.084, Florida Statutes (1989). The record reflects that the appellant did not have the requisite number of predicate offenses to qualify for such enhancement and, additionally, at the time of the original sentencing was not properly notified of the state's intent to seek habitualization. Upon remand the habitual offender classification of the sentences in these two cases should be stricken. Furthermore, upon resentencing, enhancement of the sentences pursuant to section 775.084 is precluded. This is so because the court will be sentencing Summers upon a violation of probation and such enhancement was not a sentencing option available to the court at the time of the original sentencing. Snead v. State, 616 So.2d 964 (Fla.1993).

CONFLICT ISSUE

We turn now to the resolution of our intradistrict conflict. The record shows that the trial court had originally placed Summers on probation in Circuit Court Case Nos. 88-7827, 88-14789, and 90-7880, which he subsequently violated several times. After each violation and revocation of probation, new probationary terms were imposed so that at the time Summers committed the most recent violations, he was serving concurrent terms of probation in these cases. After the latest revocation of these probations the trial court again imposed three concurrent probationary terms of fifteen years each, the statutory maximum. Summers argues such sentencing is error since these additional fifteen-year probationary terms exceed the statutory maximum when added to the time he has previously served on probation. Since it is undisputed that a trial court upon a revocation of probation may impose any sentence the court might have originally imposed, Poore v. State, 531 So.2d 161 (Fla.1988), and Franklin v. State, 545 So.2d 851 (Fla.1989), the trial court made no error in reimposing probation. However, the question which then arises is whether, once the trial court decides to impose more probation, the court must allow credit for the period of time actually served on probation before revocation thus reducing the subsequent probationary term imposed for that same crime.

In Servis, the defendant was initially placed on five years probation for second-degree grand theft, a third-degree felony with a five-year statutory maximum. The defendant subsequently violated the terms of his probation. The trial court then revoked and extended his probation for an additional three years. In Servis we affirmed the order of revocation but reversed the three-year term imposed and directed the trial court to reinstate the original order of probation. We did so because the court "could not legally extend probation beyond" the five-year statutory maximum. The effect of our decision in Servis was to give the defendant credit for the time he had already served on probation.

In Smith, on the other hand, we held that when a defendant's probation is revoked and further probation is imposed, he is not entitled to credit for the time he has already served on probation for that offense. The defendant in Smith was originally sentenced to two years incarceration followed by three years probation. The offense carried a five-year statutory maximum. While serving the probationary portion of his sentence, the defendant violated its terms. The trial court revoked his probation and ordered him to serve another five-year term of probation. In Smith we rejected the defendant's argument that the trial court erred in imposing the additional five years of probation. Instead we determined that the trial court "was not required to deduct the time already served on probation." 463 So.2d at 495. Smith drew a distinction between modification and revocation of probation, indicating that if the court had merely modified the probation, instead of revoking it, adding on the statutory maximum of five years probation would have been error. But since the trial court in Smith had revoked the probation, credit would not be due because the court would be entitled to "impose any sentence it could have originally entered less any jail time previously served." Id. The consequence of the Smith decision is to disregard the statutory maximum for punishment in cases where probation is imposed, revoked, and imposed again. For support, Smith cited the supreme court's opinion in State v. Holmes, 360 So.2d 380, 383 (Fla.1978), which stated that if probation is revoked, "no credit shall be given for time spent on probation."

After reconsidering Holmes and in light of Snead v. State, 616 So.2d 964 (Fla.1993), as we will discuss infra, we conclude that we must partially recede from Smith.

A close reading of Holmes does not support the broad conclusion that credit for probation already served should not be applied to new probationary terms imposed after revocation. Holmes dealt with an original sentencing where a probationary split sentence was initially imposed, not with a new probationary term imposed after revocation of probation. In the circumstance actually facing it our supreme court held that the combined terms of incarceration and probation may not exceed the statutory maximum. 360 So.2d at 383. The supreme court then went on to advise that in a future case where probation is subsequently revoked, a trial court could impose any sentence it might have originally imposed minus jail time previously served as part of the same sentence and that no credit may be given for the time spent on probation. We understand this 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. This construction of the supreme court's statements concerning what should happen in a future proceeding respects the distinction between probation and a "sentence." 3

In Snead, the supreme court recently faced a case where, upon revocation of probation, the newly-imposed sanction exceeded that which was legally available at the original sentencing. It held that the newly-imposed sanction was unlawful. It based its reasoning on section 948.06(1), Florida Statutes (1989), also the controlling statute in the instant case, which mandates that " 'if 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 on probation or the offender into community control.' " 616 So.2d at 965. Since the state had not properly notified Mr. Snead of an intent to habitualize him before his plea hearing, it was, upon revocation of probation, "not an option the trial court could have considered based on the facts of th[e] particular case." Id.

Combining the teachings of Holmes and Snead we are left with the following analysis in the instant case. At the original sentencing hearing, the court had five sentencing options, see Poore and Franklin, one of which was the option of imposing a straight probationary term limited by the ceiling of the statutory maximum. See also, Watts v. State, 328 So.2d 223 (Fla. 2d DCA 1976). If at the original sentencing the court had opted to impose a probationary split sentence and upon revocation of probation the court decided to impose further incarceration, it must credit previous jail time. Holmes. It follows then that if the trial court decides to place the defendant on further probation, it must also credit previous probationary time, least of all for consistency's sake. We believe this advances the objective of uniformity and consistency in Florida's sentencing scheme to which the law and the courts aspire. See, e.g., Branam v. State, 554 So.2d 512 (Fla.1990). Our analysis and conclusion also comport with the policy expressed in Snead: "We believe that this result provides the trial court with the flexibility necessary to punish offenders who violate the terms of their probation, while still providing defendants who enter a plea agreement with the requisite notice of the most severe punishment that can be imposed." 616 So.2d at 966. Our holding today will provide the same requisite notice of the most severe punishment that can be imposed--the statutory maximum. 4

In the same context of reimposing probation post-revocation the Fifth District in Ogden v. State, 605 So.2d 155, 158 (Fla. 5th DCA 1992), pointed out:

Otherwise [than being limited to the statutory...

To continue reading

Request your trial
1 cases
  • Henderson v. State, 92-01001
    • United States
    • Florida District Court of Appeals
    • January 14, 1994
    ...clearly within the statutory maximum penalty for possession of cocaine even in light of our recent en banc decision in Summers v. State, 625 So.2d 876 (Fla. 2d DCA 1993). CAMPBELL, A.C.J., and THREADGILL, J., concur. ...

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