JARRED RASHAD BURGESS vs STATE OF FLORIDA

• Court: District Court of Appeal of Florida
• Decided: June 16, 2023
• Docket: 22-2763
• Status: Published

Opinion

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

JARRED RASHAD BURGESS,

Appellant,

v. Case Nos. 5D22-2761 5D22-2762 STATE OF FLORIDA, 5D22-2763 LT Case Nos. 2020-CF-001032-A Appellee. 2019-CF-003193-A 2021-CF-000533-A ________________________________/

Opinion filed June 16, 2023

Appeal from the Circuit Court for Seminole County, Melissa Souto, Judge.

Matthew J. Metz, Public Defender, and Ryan M. Belanger, Assistant Public Defender, Daytona Beach, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Deborah A. Chance and Roberts J. Bradford, Jr., Assistant Attorneys General, Daytona Beach, for Appellee.

LAMBERT, C.J. In these consolidated appeals, Jarred Burgess challenges the trial

court’s orders revoking his community control in three cases below and the

judgments and sentences thereafter imposed. Burgess was originally

sentenced to concurrent probationary terms for several third-degree felonies

in circuit court case numbers 2019-CF-3193 and 2020-CF-1032. Burgess

then allegedly violated that probation, and while his violation of probation

proceedings were pending, Burgess was charged with another third-degree

felony 1 in circuit court case number 2021-CF-533. Upon revocation of

Burgess’s probation, by negotiated plea, the trial court imposed identical

concurrent split sentences on all charges in all three cases for 181 days in

jail (with 181 days of jail credit), six months of community control, and thirty-

six months of drug offender probation.

Eight days after imposition of the sentences, Burgess’s community

control officer filed an affidavit alleging that Burgess had violated his

community control by failing to report and “absconding” from supervision.

Following revocation of his community control, Burgess was sentenced by

the court to serve a split sentence of thirty months in prison, to be followed

by twenty-four months of drug offender probation, on all counts in each case,

1 Burgess was charged with several other offenses in circuit court case number 2021-CF-533, but the disposition of those charges is not pertinent to the instant appeal. 2 with the sentences to be served concurrently.

We affirm the revocation of Burgess’s community control without

further discussion. For the following reasons, we reverse the judgments and

sentences in circuit court cases 2019-CF-3193 and 2020-CF-1032; and we

remand with directions for the trial court to enter amended judgments and

sentences that award Burgess credit against his twenty-four-month drug

offender probation sentences for the time that Burgess had previously

served on probation in these two cases.

In Waters v. State, 662 So. 2d 332, 333 (Fla. 1995), the Florida

Supreme Court held that when a trial court imposes a new term of probation

as part of a split sentence following revocation, it must give credit to a

defendant for the time the defendant previously served on probation in the

case if the new term of probation, together with the other sanctions imposed,

plus the time the defendant previously served on probation, totals more than

the statutory maximum for the underlying offense. Waters is applicable here.

In circuit court case numbers 2019-CF-3193 and 2020-CF-1032,

Burgess had previously served more than six months of probation before his

earlier term of probation in each case was revoked. When this prior

probation credit is added to Burgess’s current split sentences of thirty months

in prison, plus the new twenty-four months of drug offender probation, the

3 aggregate total exceeds the statutory cap of five years 2 for his third-degree

felonies. Accordingly, Burgess is entitled to an award of his probation credit

previously earned in each case.

We therefore reverse Burgess’s judgments and sentences in circuit

court case numbers 2019-CF-3193 and 2020-CF-1032. We remand with

directions for the trial court to first calculate the specific amount of Burgess’s

prior probation credit in these cases and to then enter amended judgments

and sentences awarding Burgess this probation credit against his respective

twenty-four-month terms of drug offender probation. See Adams v. State,

207 So. 3d 252, 253 (Fla. 5th DCA 2016).

Lastly, as previously mentioned, this consolidated appeal includes a

third case. Burgess is also appealing the revocation of his community control

in circuit court case number 2021-CF-533 and the resulting judgment and

sentence. However, because Burgess had not previously been on probation

in this third case prior to the imposition of his current split sentence, the

above-described sentencing infirmity in his other two cases is not

applicable.3 Accordingly, we affirm Burgess’s judgment and sentence in

circuit court case number 2021-CF-533 in all respects.

2 See § 775.082(3)(e), Fla. Stat. (2019). 3 We also note that the evidence at Burgess’s trial showed that he never actually reported to his community control officer. As such, there is no 4 AFFIRMED, in part; REVERSED, in part; REMANDED, with directions.

MAKAR and BOATWRIGHT, JJ., concur.

separate community control credit to be computed and applied towards his new terms of probation in his cases. See Jacoby v. State, 215 So. 3d 168, 171 (Fla. 2d DCA 2017). 5