ELVIS UPSHAW, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Florida appellate court reversed an illegal 17-year sentence imposed upon probation revocation for a second-degree felony, requiring resentencing within the 15-year statutory maximum, but affirmed the trial court's proper allocation of time-served credit to the Department of Corrections.
A trial court improperly sentences a probationer to 17 years for a second-degree felony when the statutory maximum is 15 years, and such sentence must be reversed and remanded for resentencing within statutory limits.
[1] A trial court may properly delegate to the Department of Corrections the task of computing the amount of time-served credit to be awarded to a probationer upon revocation…
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Join FLexlaw to unlock all legal intelligenceElvis Upshaw's probation was revoked for a second-degree felony, and the trial court sentenced him to 17 years imprisonment and awarded 34 days' credi…
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RYDER, Acting Chief Judge.
Elvis Upshaw contends, and the state concedes, that the trial court improperly sentenced him to seventeen years’ imprisonment after revoking his probation for a second degree felony. Accordingly, we reverse his sentence and remand for the trial court to sentence him within the statutory maximum for a second degree felony, fifteen years. § 775.082(3)(c), Fla.Stat. (1989). Upshaw need not be present for resentencing.
Upshaw also asserts that the lower court failed to give him credit for time he served on the incarcerative portion of his original split sentence. In its written sentence, the court allowed thirty-four days’ credit for time served before imposition of the sentence. It further ordered that he be allowed credit for all time previously served in the Department of Corrections. As we noted in Mongiouvi v. State, 639 So. 2d 686 (Fla. 2d DCA 1994), the trial court may properly assign the task of determining the amount of time to be credited to the Department of Corrections. The court’s written sentence does just that. Moreover, credit for gain time earned on the previous sentence would not be available to Upshaw because his original offense was committed after October 1, 1989. Bradley v. State, 631 So. 2d 1096 (Fla.1994). The Department can, therefore, easily compute the amount of credit to be awarded. The trial court did not err on this point.
Affirmed in part, reversed in part and remanded.
PARKER and ALTENBERND, JJ., concur.
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Citator
Cited By
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Lytle v. State, 696 So. 2d 848 (Fla. 2d DCA 1997)…2d 277 (Fla. 2d DCA 1985). We also remand for a determination of the amount of credit Mr. Lytle is to receive for time served. The trial court may properly assign the task of determining this amount to the Department of Corrections. Upshaw v. State, 652 So. 2d 1220 (Fla. 2d DCA 1995). Affirmed; remanded. DANAHY and BLUE, JJ., concur.…
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Soloman v. State, 698 So. 2d 909 (Fla. 2d DCA 1997)…ce.” Poore, 531 So. 2d at 164. Accordingly, we reverse and remand for Soloman to be resentenced for a period not to exceed the five-year suspended portion of the original sentence. Soloman need not be present for resentencing. See Upshaw v. State, 652 So. 2d 1220 (Fla. 2d DCA 1995). Affirmed in part, reversed in part, and remanded for resentencing. FRANK, A.C.J., and PATTERSON, J., concur.…
Authorities Cited
- L.C. Bradley v. State, 631 So. 2d 1096 (Fla. 1994)
- Mongiouvi v. State, 639 So. 2d 686 (Fla. 2d DCA 1994)