Young v. State, 95-1815

• Decision Date: 31 July 1996
• Docket Number: No. 95-1815,95-1815
• Citation: 678 So.2d 427
• Parties: 21 Fla. L. Weekly D1735 Kevin YOUNG, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 427

678 So.2d 427

21 Fla. L. Weekly D1735

Kevin YOUNG, Appellant, v. STATE of Florida, Appellee.

No. 95-1815.

District Court of Appeal of Florida,

Fourth District.

July 31, 1996.

Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for appellee.

STEVENSON, Judge.

The question in the present case is whether a defendant whose community control is revoked may be sentenced to a term of incarceration, which, when added to the time previously served on community control, exceeds the statutory maximum for the convicted offense. We answer the question with a reluctant yes.

Appellant, Kevin Young, was sentenced as a youthful offender to serve concurrent terms of two and a half years in prison to be followed by two years community control on convictions for aggravated assault, a third degree felony, and armed robbery with a deadly weapon, a first degree felony. After revocation of community control, Young was sentenced to five and a half years in prison on the armed robbery conviction and a concurrent five year prison term for the aggravated assault.

Although Young was given credit for 724 days of prior incarceration, the trial court did not take into consideration the time that appellant spent on community control. Since five years is the maximum sentence for a third degree felony (section 775.082(3)(a), Fla. Stat. (1991)), Young argues that the trial court's failure to give credit for the time which Young spent on community control resulted in a sentence which exceeded the statutory maximum on the aggravated assault conviction. Fatal to appellant's argument is the incorrect foundational premise that the time previously served on community control may be taken into account in determining whether the newly imposed term of incarceration exceeds the statutory maximum.

We agree with the state that Young's sentence must be approved because the trial court was not required to give Young credit for time served on community control against his new sentence of incarceration. See State v. Holmes, 360 So.2d 380, 383 (Fla.1978), holding limited by, State v. Summers, 642 So.2d 742 (Fla.1994). See also § 948.06(1), Fla. Stat. (1993) (upon revocation of probation the court may "impose any sentence which it might have originally imposed before placing the probationer or offender on probation or into community control") and § 948.02(2), Fla. Stat. (1993) (upon revocation of probation "[n]o part of the time that the defendant is on probation or in community control shall be considered as part of any time that he shall be sentenced to serve."). Taken together, these statutory provisions mean that upon revocation of probation or community control, the defendant will not be entitled to receive credit for time served on probation or community control against a newly imposed period of incarceration.

We answered with a reluctant yes to the question presented because this conclusion means that the legislature intended to permit a defendant to be able to serve a period of probation or community control and incarceration, which when combined together, could exceed the legislatively mandated statutory maximum for the offense. Such an interpretation could lead to some curious and seemingly harsh results. For instance, a defendant sentenced to 15 years probation on a second degree felony who violates probation in his fourteenth year would be in jeopardy of being sentenced to prison for 15 years. Thus, his combined periods of incarceration and probation would total 29 years even though the statutory maximum for a second degree felony is only 15 years. Incredibly, the defendant would have suffered state-imposed sanctions of 29 years for a fifteen year offense. Nevertheless, where the legislative directive is clear on its face, there is no room for different interpretation by the judiciary. The legislature is...