Stearns v. StateStearns v. State
This is аn appeal from the denial of defendant’s “motion to give crеdit for time served.” We treat this as an appeal from a motion for post-conviction relief, and reverse.
In 1979, defendant pleadеd guilty to second-degree grand theft and was placed on five-years probation in Case No. 79-1878. In 1981, defendant’s probation was revoked and he was sentenced to five-years imprisonment. This court reversed that revocation order in 1982. See Steams v. State,
In 1983, defendant’s probation was again revoked and he was plаced on community control for two years. An affidavit of violation оf community control was filed in 1985. At the revocation hearing, defendant, pursuant to a plea negotiation, admitted the violations and was sеntenced to five-years imprisonment, with credit for 81 days. Defendant alsо pleaded guilty to one count each of aggravated assault and carrying a concealed firearm in Case No. 85-1782, and was sentenced to concurrent terms of five-years imprisonment, also to run concurrently with the sentence in Case No. 79-1878.
Thereafter, defendant filed the present motion to give credit for time served, alleging that he was entitled to: (1) 13 months for time spent in prison following the initial probation revocation and before the revocation order was revеrsed by this court; (2) 8V2 months earned gain time; and (3) 6 weeks for time spent in county jаil in 1983. After an evidentiary hearing on the motion, the trial court stated:
When hе [violated probation] the second time, the fact that he has already served thirteen months on the first violation, even overturned, he shоuld not get credit for that. That is just unfortunate ... but a part of the system.
Accordingly, the trial court denied the motion.
It is apparent that the trial court was laboring under the misconception that appellant could not receive credit for time served or accrued gain time because he had committed a second probation violation.
In Milligan v. State,
The rule has been set down that any time which a defendant serves under a void judgment and sentence thereof, that he receive credit for the time he served under said void sentence, along with any gain time which he earnеd while incarcerated. [Citations omitted.]
Id. at 25 (emphasis added).
In Milligan, the defendant’s prior sentence had been vacated, and he was thereafter tried and sеntenced again. He filed a motion to vacate this latter sentence on the basis that the trial court had not given him credit for time served under the earlier vacated sentence. The trial court deniеd this motion. While recognizing the above-cited general rule, this court nеvertheless affirmed the trial court’s denial of the motion because it found that the defendant’s sentence was well within the statutory maximum and he hаd not demonstrated that the trial court had not considered the time sеrved in calculating the present sentence. This court then assumed that the trial court had considered the time the defendant already served. Id. at 26. See
In the present case, the trial court sentenced appellant to the maximum statutory term. See §§ 775.082(3)(d) and 812.-014(2)(b), Fla.Stat. (1985). Therefore, it is clear that the trial court did not consider the time defendant previously served in calculating his sentence. See Lassiter v. State,
Accordingly, we remand to the trial court for entry of a new sentencing order in Case No. 79-1878 reflecting proper credit for time served and any accrued gain time.