EMMET W. BAKER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Emmet Baker appealed his probation revocation sentence, challenging whether it exceeded the statutory maximum for a second-degree felony. The court held that the trial court must credit time previously spent on probation and imprisoned toward the new sentence to ensure the total supervision period does not exceed 15 years.
The trial court must credit time previously spent on probation and time previously served in prison (including gain time) toward any new sentence imposed upon probation revocation to ensure the total combined term of incarceration and probation does not exceed the statutory maximum of 15 years for a second-degree felony.
[1] The combined terms of incarceration and probation imposed upon a defendant may not exceed the statutory maximum sentence for the offense.
[2] Upon revocation of probation, a trial court must credit time previously spent on probation toward a new term of probation if necessary to prevent the total term of superv…
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Join FLexlaw to unlock all legal intelligence“The combined terms of incarceration and probation may not exceed the statutory maximum sentence.”
Establishes the fundamental principle that total supervision cannot exceed the statutory maximum under State v. Holmes
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Join FLexlaw to unlock all legal intelligenceBaker pleaded no contest in 1988 to lewd and lascivious assault on a child under 16, a second-degree felony, and was placed on five years' probation w…
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RYDER, Acting Chief Judge.
Emmet Baker seeks review of the sentence the trial court imposed after he violated his probation. He contends it exceeds the statutory maximum sentence because he was not awarded credit for time previously served on probation and in jail. We agree, reverse and remand for resentencing.
In May 1988, Baker pleaded no contest to a charge of lewd and lascivious assault on a child under the age of sixteen, a second degree felony. § 800.04, Fla. Stat. (1987).
The trial court withheld adjudication and placed him on five years’ probation. Three years later, Baker violated his probation. The court imposed a sentence of three and one-half years’ imprisonment, to be followed by eleven and one-half years’ probation. Baker appealed this sentence.1 On May 21, 1993, while the appeal was pending, he moved the lower court to correct an illegal sentence, asserting the victim injury points assessed on his sentencing guidelines score-sheet were improper under Karchesky v. State, 591 So. 2d 930 (Fla.1992).
The state agreed that Baker’s motion had merit. At the resentencing hearing, the court deleted the previously imposed sentence of imprisonment and again placed Baker on eleven and one-half years’ probation. Baker had been imprisoned while his appeal and motion to correct illegal sentence were pending. The statutory maximum sentence for a second degree felony is fifteen years. § 775.082(3)(c), Fla.Stat. (1987).
Baker apparently spent more than three years on probation before his 1991 violation. He then served approximately two years in prison on the 1991 sentence before he was resentenced in 1993. When the new eleven and one-half-year probation term is added to his previous terms of imprisonment and probation, his period of supervision exceeds fifteen years. The combined terms of incarceration and probation may not exceed the statutory maximum sentence. State v. Holmes, 360 So. 2d 380 (Fla.1978).
Moreover, upon revocation of probation, the trial court must credit the time previously spent on probation toward a new term of probation when necessary to ensure that the total term of supervision does not exceed the statutory maximum. State v. Summers, 642 So. 2d 742, 743 (Fla.1994).
The state concedes that, because Baker’s original offense occurred prior to October 1, 1989, he would also be entitled to credit for gain time under State v. Green, 547 So. 2d 925 (Fla.1989), when computing whether a sentence exceeded the statutory maximum. See also Alvarez v. State, 626 So. 2d 265 (Fla. 2d DCA 1993), approved, 644 So. 2d 1360 (Fla.1994). On remand, the trial court shall credit Baker with the time he previously spent on probation and the time he previously served in prison, including gain time, and resentence him to a term within the statutory maximum sentence for a second degree felony.
Reversed and remanded for resentencing.
ALTENBERND and QUINCE, JJ., concur. . This court reversed and remanded for the trial court to conform the written sentence to its oral pronouncement and to delete a condition of probation. Baker v. State, 619 So. 2d 411 (Fla.2d DCA 1993). These issues are not germane to this appeal.
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Manning v. State, 961 So. 2d 1135 (Fla. 2d DCA 2007)…359, 360 (Fla. 3d DCA 2001).2 As to the merits of Manning’s challenge to his current sentence, it is well established that the combined terms of incarceration and probation must not exceed the statutory maximum for the offense. See Baker v. State, 652 So. 2d 431, 432 (Fla. 2d DCA 1995); Gonzales v. State, 816 So. 2d 720, 721 (Fla. 5th DCA 2002). When the trial court imposed the sentence of five years in prison to be followed by three years’ probation in August 2000, it exceeded the statutory maximum of five…
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Gremmels v. State, 858 So. 2d 1167 (Fla. 2d DCA 2003)…ive years’ probation. As the State properly concedes, because the combined sentence exceeds the five-year statutory maximum, the sentence was illegal. See § 775.082, Fla. Stat. (2001); State v. Holmes, 360 So. 2d 380, 383 (Fla.1978); Baker v. State, 652 So. 2d 431 (Fla. 2d DCA 1995). However, the State argues that this court need only remand with directions for the trial court to impose [*1168] a Villery sentence, as the trial court’s intent was to make the county jail sentence a special condition of the five…
Authorities Cited
- State v. Green, 547 So. 2d 925 (Fla. 1989)
- Karchesky v. State, 591 So. 2d 930 (Fla. 1992)
- Carder v. State, 642 So. 2d 742 (Fla. 1994)
- State v. Holmes, 360 So. 2d 380 (Fla. 1978)
- Henderson v. Henderson, 619 So. 2d 411 (Fla. 4th DCA 1993)
- Emmett William Baker v. State, 619 So. 2d 411 (Fla. 2d DCA 1993)
- Alvarez v. State, 626 So. 2d 265 (Fla. 2d DCA 1993)
- State v. Alvarez, 644 So. 2d 1360 (Fla. 1994)