Dupree v. StateDupree v. State
- Reporters:
- ,
- Before:
- Kahn, Mickle, Davis (per curiam)
James D. Dupree appeals the circuit court‘s denial of his motion for postconviction relief filed pursuant to
In February 1992, Dupree entered a plea of guilty to charges of arson, burglary of a structure, and grand theft. He was sentenced to community control for a term of 24 months on each count, to run concurrently, followed by probation for 36 months on each count, to run concurrently. He was also ordered to pay court costs of $300.00, costs of investigation of $30.00 to the State Attorney‘s Office, perform 400 hours of community service, make restitution, receive substance abuse evaluation and counseling, and submit to random urinalysis. Dupree violated these conditions on three occasions. Following the first two violations, in May 1992 and March 1994, he was restored to community control on August 6, 1992, and May 4, 1994, respectively. Following the third violation, which occurred in June 1995, Dupree was sentenced to a term of imprisonment of 4½ years on each count, to run concurrently, with credit for time served. This sentencing took place on January 22, 1997.
In his 3.850 motion, Dupree asserted four claims for relief. First, he asserted that the trial court erred in delegating responsibility for determining the amount of his monthly restitution payments to the community control officer. As the circuit court explained in its order denying Dupree‘s motion, the plea agreement Dupree signed stipulated that the community control officer would determine the monthly restitution payments. The agreement also stated that if Dupree disagreed with the determined amount, he could request a hearing and have the judge determine the amount. Dupree never objected to this condition and never requested that the court review the amount of his payments; therefore, he cannot now complain that his payments were too high. See Wilson v. State, 407 So.2d 1078, 1079 (Fla. 1st DCA 1982) (“While the court in this case should have specified the amount of
In his second claim, Dupree asserted that the trial court erred by not awarding him credit for time spent on community control when it imposed new terms of community control following his violations. Although the circuit court correctly stated that the cases Dupree relied on for this assertion, State v. Summers and State v. Roundtree, were decided after May 4, 1994, the last date on which he was resentenced to community control, this does not dispose of Dupree‘s claim. In State v. Summers, the supreme court held as follows:
[U]pon revocation of probation credit must be given for time previously served on probation toward any newly-imposed probationary term for the same offense, when necessary to ensure that the total term of probation does not exceed the statutory maximum for that offense. We note, however, that where the total term of probation will not exceed the statutory maximum for a single offense, the court need not give credit for the time already served on probation. For example, when a defendant who had been given two years’ probation for a third-degree felony violates probation after serving one year, the judge can impose up to three additional years of probation without giving credit for the one year already served because the total term of probation would not exceed the five year statutory maximum.
642 So.2d 742, 744 (Fla.1994). In State v. Roundtree, the supreme court approved an opinion from the Fourth District Court of Appeal which certified the following question:
MUST A TRIAL COURT, UPON REVOCATION OF PROBATION (AND/OR COMMUNITY CONTROL), CREDIT PREVIOUS TIME SERVED ON PROBATION (AND/OR COMMUNITY CONTROL) TOWARD A NEWLY IMPOSED PROBATIONARY TERM SO THAT THE TOTAL PROBATIONARY TERM SERVED AND TO BE SERVED DOES NOT EXCEED THE MAXIMUM SENTENCE ALLOWED BY LAW?
644 So.2d 1358, 1358-59 (Fla.1994). The court indicated that the Fourth District‘s decision was “in harmony with our decision in Summers.” Roundtree, 644 So.2d at 1359. Further, the Florida Supreme Court has also indicated that the rule announced in Summers applies to violations that occurred prior to that ruling. See Francois v. State, 695 So.2d 695, 697 n. 2 (Fla.1997) (“Summers was decided after Francois’ violations, but it applies here because `disposition of a case on appeal is made in accordance with the law in effect at the time of the appellate court‘s decision’ unless a substantive right is altered.)” (quoting State v. Lavazzoli, 434 So.2d 321, 323 (Fla.1983)). In both Summers and Roundtree, however, the imposed terms at issue were terms of probation and neither case concerned the situation challenged by Dupree in the instant 3.850 motion, i.e., successive terms of community control.
“The statutory maximum for a sentence of community control is two years.” McGehee v. State, 688 So.2d 1008, 1009 (Fla. 1st DCA 1997); see
Nevertheless, Dupree did not challenge the trial court‘s reimposition of two years’ community control until after he violated the terms of that community control and the trial court sentenced him to a term of imprisonment. “[O]ne who takes advantage of an invalid sentence until he violates community control is estopped to assert the invalidity of his original sentence.” Stroble v. State, 689 So.2d 1089, 1090 (Fla. 5th DCA), review denied, 697 So.2d 512 (Fla.1997); see Huff v. State, 672 So.2d 634, 635 (Fla. 1st DCA 1996) (“[A]lthough his original suspended sentence may have been improper ..., it is not reversible on this appeal because Appellant has already received the benefits of the improper sentence.“); Warrington v. State, 660 So.2d 385, 387 (Fla. 5th DCA 1995) (“Usually a defendant cannot agree to an illegal sentence, but when the illegal alternative and conditional defects which benefited that defendant are no longer in effect, the terms of incarceration that were agreed upon are valid so long as they are not beyond the statutory maximums for the offenses for which the defendant was convicted.“), disapproved on other grounds, State v. Powell, 703 So.2d 444 (Fla.1997); Gaskins v. State, 607 So.2d 475, 476 (Fla. 1st DCA 1992) (“Existing case law recognizes that once a defendant has enjoyed the benefits of probation without challenging the legality of sentence, the defendant is thereafter precluded from complaining that the sentence is illegal in an appeal from an order revoking probation.“), disapproved on other grounds, State v. Powell, 703 So.2d 444 (Fla.1997); Bashlor v. State, 586 So.2d 488, 489 (Fla. 1st DCA 1991) (“Absent some jurisdictional flaw, Florida courts have repeatedly held that sentences imposed in violation of statutory requirements, which are to the benefit of the defendant and to which he agreed, may not be challenged after the defendant has accepted the benefits flowing from the plea, but has failed to carry out the conditions imposed on him.“).
A similar problem arose in Lee v. State, where the defendant originally received five years’ probation and violated the terms of that probation. 666 So.2d 209 (Fla. 2d DCA 1995). Upon violation of probation, in January 1993, the trial court sentenced him to 17 years in prison; however, the trial court suspended the entire sentence and placed the defendant on community control. Id. at 210. After the defendant subsequently violated community control, in August 1993, the trial court imposed 22 years of imprisonment and again suspended the entire sentence, placing the defendant on 21 months community control, followed by 5 years of probation. Id. The defendant again violated his community control and the trial court sentenced him to 22 years in prison. Id. The defendant appealed, arguing that he could be imprisoned for only 17 years because of the January 1993 sentence. Id. The Second District affirmed:
The flaw in Mr. Lee‘s argument is his failure to appeal the August 1993 sentence when it was initially imposed. If he had done so, we would have reversed the sentence and remanded for resentencing. At that resentencing, however, he could have received 17 years in prison rather than community control. By accepting the benefit of community control, he waived his right to enforce the earlier true split sentence.
Id. (citations omitted). Similarly, in this case, if Dupree had appealed either of his first two restored terms of two years’ community control, the court would have reversed and remanded for resentencing. At that resentencing, the trial court could have imposed “any sentence which it might have originally imposed” before placing Dupree on community control.
Dupree next asserts that he is entitled to credit for time served on his community control sentences against his current term of incarceration. As the circuit court explained in its order, Dupree was sentenced to a term of imprisonment without any period of community control or probation and, therefore, he is not entitled to credit for time he spent on community control. See
Finally, Dupree asserts that his current sentence was obtained by violation of the constitutional protection against double jeopardy. He bases this assertion on the trial court‘s failure to credit him with time served on community control. As explained above, however, he is not entitled to any credit against his prison sentence for time he spent on community control.
AFFIRMED.
KAHN, MICKLE and DAVIS, JJ., concur.