HARLAN SMITH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Harlan Smith appeals his probation violation conviction and the resulting five-year probation sentence. The appellate court affirmed the violation finding but reversed the sentencing, holding that the trial court should have credited jail time previously served on the original sentence.
The court affirmed that Smith violated probation but held that the trial court erred by failing to credit the jail time previously served on the original sentence. Upon probation revocation, a court may impose any sentence it could have originally imposed, less any jail time previously served as part of the sentence.
[1] Upon revoking probation, a court may impose any sentence it could have originally entered, less any jail time previously served as part of the sentence.
[2] A court may impose a new term of probation for the maximum statutory period after revoking a defendant's probation.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Upon revoking probation, a court may impose any sentence it could have originally entered less any jail time previously served as a part of the sentence.”
Establishes the legal standard for sentencing upon probation revocation under State v. Holmes.
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Join FLexlaw to unlock all legal intelligenceSmith was originally sentenced on April 1, 1981, to two years incarceration with all but six months suspended, plus three years probation for theft ch…
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SCHOONOVER, Judge.
Appellant, Harlan Smith, appeals from an order finding him guilty of violating his probation. We find merit only in appellant’s contention that the trial court erred in sentencing him.
On April 1, 1981, appellant was sentenced to two years incarceration, with all but six months suspended, and placed on probation for a period of three years for violating sections 812.014 and 812.015, Florida Statutes (1979). On June 18, 1984, appellant was found guilty of violating the terms of his probation. The court terminated appellant’s probation and then sentenced him to serve another five-year term of probation. Appellant contends that since five years is the maximum permissible sentence of combined incarceration and probation for his original crime, the court erred in requiring him to serve an additional five years of probation.
Appellant’s original sentence of two years incarceration followed by three years probation was within the five-year maximum sentence allowed for the crime he committed. See Watts v. State, 328 So. 2d 223 (Fla. 2d DCA 1976). If the court had modified this sentence by adding five years of probation to the original sentence, the total period of probation under the original order would have exceeded the maximum sentence and the court would have erred. Schertz v. State, 387 So. 2d 477 (Fla. 4th DCA 1980). The court did not modify its original order, however, but instead re voked appellant’s probation. Upon revoking probation, a court may impose any sentence it could have originally entered less any jail time previously served as a part of the sentence. State v. Holmes, 360 So. 2d 380 (Fla.1978). The court therefore had the authority to place appellant on a new term of probation for a period of five years. Although the court was not required to deduct the time already served on probation, it erred in failing to credit the jail time appellant had previously served on the original sentence. Holmes.
Accordingly, we affirm the order finding appellant guilty of violating the terms of his probation, but remand with directions that the order placing appellant on probation be modified to allow credit for jail time previously served on the original sentence.
Affirmed in part, reversed in part, and remanded.
SCHEB, A.C.J., and DANAHY, J., concur.
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Denver Hutchinson v. State, 467 So. 2d 788 (Fla. 2d DCA 1985)…recommended range upon stating a valid reason for doing so. Hodges. At resentencing, the court must give appellant credit for all jail time previously served as a part of the sentence. State v. Holmes, 360 So. 2d 380 (Fla.1978); Smith v. State, 463 So. 2d 494 (Fla. 2d DCA 1985). The record indicates that appellant has served approximately one and one-half years on the grand theft charge prior to violating his probation. Appellant additionally is entitled to credit for any time spent in the county jail be…
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Summers v. State, 625 So. 2d 876 (Fla. 2d DCA 1993)…ues. 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 imprope…1 / 2
Authorities Cited
- State v. Holmes, 360 So. 2d 380 (Fla. 1978)
- Watts v. State, 328 So. 2d 223 (Fla. 2d DCA 1976)
- Schertz v. State, 387 So. 2d 477 (Fla. 4th DCA 1980)