Triatik v. State

• Decision Date: 28 March 2019
• Docket Number: No. 1D18-1426,1D18-1426
• Citation: 267 So.3d 535
• Parties: Michael John TRIATIK, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

267 So.3d 535

Michael John TRIATIK, Appellant,
v.
STATE of Florida, Appellee.

No. 1D18-1426

District Court of Appeal of Florida, First District.

March 28, 2019

Andy Thomas, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.

Ashley B. Moody, Attorney General, and Barbara Debelius, Assistant Attorney General, Tallahassee, for Appellee.

Osterhaus, J.,

Michael Triatik argues that he is entitled to receive credit for time spent in county jail against all nine counts of his sentence, instead of against count 1 only. We disagree that jail credit must be given against all of the counts because he was sentenced with consecutive sentences. But we agree that credit should have been applied to the four misdemeanor counts because his jail credit time plus probation-served time exceeded the statutory maximum for these counts already by the time the court revoked his probation and sentenced him to consecutive sentences.

I.

In May 2017, Michael Triatik pled no-contest to nine charges, including extortion, felony failure to appear, two counts of tampering with evidence, grand theft, and four counts of distribution of obscene material. The trial court withheld the imposition of a sentence and ordered Mr. Triatik to serve 24 months community control followed by 36 months probation for counts 1-5, running concurrently. For misdemeanor counts 6-9, the court ordered 12 months of probation for each count, concurrent with each other and with count 1. Mr. Triatik had spent 258 days in jail prior to the trial court's order imposing community control and probation.

About six months after this disposition, the State filed an affidavit of violation. Mr. Triatik had been arrested on 25 new criminal charges and was found in violation of his probation. The trial court then sentenced him to prison with consecutive sentences on the first five original counts—15 years incarceration for count 1; 5 years incarceration each for counts 2-5—as well as to 364 days in jail each for counts 6-9, concurrent with each other and with count 5. The court awarded him jail credit for the 258 days only against count 1, and he appealed.

While Mr. Triatik's appeal was pending, he filed a Rule 3.800(b)(2) motion contending, in part, that he was entitled to additional jail credit, including 258 days on counts 2-9 of his sentence because the court had originally ordered concurrent terms of community control and probation on the counts. He also argued that the court was without jurisdiction over counts 6-9 because the 1-year probation period had run before the affidavit of violation was filed. The trial court rejected both of these arguments.

II.

Mr. Triatik's appeal of the motion to correct sentencing error involves purely legal issues which appellate courts review de novo. Daffin v. State , 31 So.3d 867, 870 (Fla. 1st DCA 2010).

A.

Mr. Triatik argues that he is entitled to have his original 258 jail credit days applied beyond count 1, to all of the counts, because the trial court originally imposed his community control and probationary conditions "concurrently" on all the

267 So.3d 537

counts. We do not agree with his argument. We recognize that

[a] defendant is entitled to an award of credit for all time spent in the county jail prior to sentencing in a violation case, which includes all time spent in the county jail prior to the original sentencing plus all

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