Moore v. State

859 So. 2d 613, 2003 WL 22799303
District Court of Appeal of Florida·Decided November 26, 2003·No. 1D03-617·Published·Cited by 4 cases

Opinion

859 So.2d 613 (2003)

Geanetta MOORE a/k/a Jeanetta Moore, Appellant,
v.
STATE of Florida, Appellee.

No. 1D03-617.

District Court of Appeal of Florida, First District.

November 26, 2003.

Nancy A. Daniels, Public Defender; P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, for Appellant.

Charlie Crist, Attorney General; Alan R. Dakan, Assistant Attorney General, Tallahassee, for Appellee.

*614 WEBSTER, J.

In this direct criminal appeal, appellant seeks review of sentences imposed following revocation of probation. She argues that, because she was originally sentenced on two counts in one case to concurrent 24-month prison terms to be followed by concurrent 5-year probationary terms on two counts of a second case, the decisions in Tripp v. State, 622 So.2d 941 (Fla.1993), and its progeny mandate that she receive credit upon the revocation of her probation in the second case for the time she spent in prison on the sentences imposed in the first case. Because appellant was sentenced pursuant to the Criminal Punishment Code rather than its predecessor (the sentencing guidelines), we disagree and, accordingly, affirm. We also certify to the supreme court a question which we believe to be of great public importance.

I.

In November 2000, appellant entered no-contest pleas to charges of grand theft and felony failure to appear in case number 99-2202, and to identical charges in case number 99-4516. In January 2001, the trial court sentenced appellant pursuant to the Criminal Punishment Code (§§ 921.002-921.0027, Fla.Stat.(1999)) to concurrent 24-month prison terms on the two counts in case number 99-2202, to be followed by concurrent 5-year probationary terms on the two counts in case number 99-4516. Appellant served the prison terms imposed in case number 99-2202, and began her probation in case number 99-4516.

In January 2003, appellant admitted that she had violated her probation. Her attorney argued that she was entitled to credit for prison time previously served in case number 99-2202 on any prison sentence imposed in case number 99-4516 for violation of probation because the original Criminal Punishment Code scoresheet used had included both cases. The trial court agreed with the prosecutor that appellant was not entitled to such credit because she was being sentenced in only case number 99-4516. Accordingly, the trial court revoked appellant's probation in that case, sentencing her to concurrent 36-month prison terms on the two counts. It did not award any credit for the time appellant had previously served in prison on the sentences imposed in case number 99-2202.

Appellant subsequently filed a timely motion pursuant to Florida Rule of Criminal Procedure 3.800(b), again requesting credit on her sentences in case number 99-4516 for the time she had spent in prison on the sentences imposed in case number 99-2202, and relying on Tripp v. State, 622 So.2d 941 (Fla.1993), and State v. Witherspoon, 810 So.2d 871 (Fla.2002). The trial court denied the motion, concluding that Tripp and Witherspoon did not apply because appellant had been sentenced pursuant to the Criminal Punishment Code rather than the pre-1998 sentencing guidelines. This appeal follows.

II.

A.

In Tripp, the defendant had pleaded guilty pursuant to a plea agreement to charges of burglary and grand theft, which had occurred in November 1988, and had been charged in a single information. State v. Tripp, 591 So.2d 1055, 1056 (Fla. 2d DCA 1991). In return, the state had agreed to imposition of a guidelines sentence. Id. Pursuant to the sentencing guidelines, the maximum permitted sentence was 4½ years. Id. The trial court imposed a 4-year prison sentence for the burglary. Id. For the grand theft, the court placed Tripp on probation. Id. The *615 probation was to run consecutively to the prison sentence. Id. After completing his prison sentence, Tripp began his probationary term. Id. A short time later, he violated the terms of that probation. Id. Probation was revoked, and Tripp was sentenced to 4½ years in prison. Id. He was also given credit against that sentence for the 4 years he had already served for the burglary conviction. Id.

On appeal, the Second District Court of Appeal reversed. It concluded that the sentences imposed had not amounted to a split sentence for which jail credit was required but, instead, involved one sentence followed by a separate, consecutive, sentence of probation. Id. Because two separate sentences were involved, the court reasoned that Tripp was not entitled to jail credit on the second, consecutive, sentence for time spent in prison on the first sentence. Id. at 1056-57. However, recognizing that its holding would permit trial courts to exceed the maximum permitted sentence contemplated by the sentencing guidelines (id. at 1057), the court certified the following question to the supreme court:

IF A TRIAL COURT IMPOSES A TERM OF PROBATION ON ONE OFFENSE CONSECUTIVE TO A SENTENCE OF INCARCERATION ON ANOTHER OFFENSE, CAN JAIL CREDIT FROM THE FIRST OFFENSE BE DENIED ON A SENTENCE IMPOSED AFTER A REVOCATION OF PROBATION ON THE SECOND OFFENSE?

Id.

The supreme court accepted review, answered the certified question in the negative, and quashed the Second District's decision. Tripp v. State, 622 So.2d 941, 942-43 (Fla.1993). It "h[e]ld that if a trial court imposes a term of probation on one offense consecutive to a sentence of incarceration on another offense, credit for time served on the first offense must be awarded on the sentence imposed after revocation of probation on the second offense." Id. at 942 (footnote omitted). In support of this holding, the court offered the following analysis:

The purpose of the sentencing guidelines is "to establish a uniform set of standards to guide the sentencing judge in the sentence decision-making process" so as to eliminate unwarranted variation in sentencing.... One guidelines scoresheet must be utilized for all offenses pending before the court for sentencing.... A sentence must be imposed for each separate offense, but the total sentence cannot exceed the permitted range of the applicable guidelines scoresheet unless a written reason is given.... Sentences imposed after revocation of probation must be within the recommended guidelines range and a one-cell bump.
When Tripp was originally sentenced, the maximum jail time he could have received within the permitted range of the sentencing guidelines was four and one-half years. Under ordinary circumstances, when he violated his probation, his sentence could not exceed the five-and-one-half-year maximum of the next highest permitted range (limited by the fact that the maximum sentence for a third-degree felony is five years), less credit for time served. The problem arises because Tripp committed two crimes. Unless he is given credit for time served on the one against the sentence imposed for the other upon the probation violation, his total sentence for the two crimes will be eight and one-half years, which is three years beyond the permitted range of a one-cell bump.

[I]t appears that the sentencing method sanctioned by the district court of *616 appeal is inconsistent with the intent of the sentencing guidelines. Under this method, trial judges can easily circumvent the guidelines by imposing the maximum incarcerative sentence for

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Moore v. State, 859 So. 2d 613, 2003 WL 22799303 (Fla. Ct. App. 2003).

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