Gonzalez v. StateGonzalez v. State
On April 15, 1994 the defendant pleaded nolo contendere to aggravated battery with a deadly weapon and unlawful possession of a firearm by a convicted felon. The trial court adjudicated him guilty of these offenses and sentenced him to six months community control followed by two years probation.1 On July 26, 1994, an affidavit of violation of community control was filed. On September 14, 1994 the trial court entered an order finding the defendant had violated his community control and modified his sentence.
Ultimately, after two more affidavits of community control violations had been filed the trial court, on November 6, 1995, revoked the defendant‘s amended community control and sentenced him to six years in prison. The court gave the defendant 165 days credit for the time he spent incarcerated before the imposition of this sentence.
On January 29, 1996, defendant filed the instant “Motion for Time Previously Served.” On February 15, 1996, the trial court denied the motion. The defendant appeals.
Preliminarily, we note that we treat the defendant‘s motion as having been filed pursuant to
Sentences consisting of a period of probation, or by inference community control, preceded by a period of confinement as a special condition are known as Villery2 sentences. Poore v. State, 531 So.2d 161, 164 (Fla.1988). Poore makes clear that if a defendant violates his community control in a Villery sentence, the sentencing judge “may impose any sentence he or she originally might have imposed, with credit for time served and subject to the guidelines recommendation.” Id. (emphasis added).
Meintzer v. State, 399 So.2d 133, 134 (Fla. 5th DCA 1981), holds: “If, as here, a defendant is first put on probation with the condition that he serve certain time in the county jail and he serves that time and later violates his probation and is then sentenced to prison he is entitled to credit against his prison sentence for the time served in the county jail as a condition of probation.” See also Robinson v. State, 502 So.2d 1306 (Fla. 1st DCA 1987); Frizzell v. State, 473 So.2d 290 (Fla. 2d DCA 1985); Roesch v. State, 446 So.2d 269 (Fla. 2d DCA 1984).
Consequently, the order appealed is reversed and the cause remanded for the court to credit the defendant for the 43 days he served in the county jail as a condition of his community control against the ultimate six year prison sentence he received. Defendant‘s remaining contentions are without merit.