Yourn v. StateYourn v. State
Albert Yourn asserts that the lower court used the wrong scoresheet when it sentenced him following revoсation of his probation for robbery offenses. He also contends that the court incorrectly calculated the credit due him for time previously served. We agree with both his arguments and reverse.
We will first address the numerous scoresheets involved in this appeal. In 1986, the trial court placed Yourn on ten years’ probation for two robberies. The scoresheet prepared in connection with these chаrges showed a recommended range of three and one-half to four and one-half years’ imprisonment (the “1986 scoresheet“). The following year, Yourn was charged with three more robberies and an affidavit оf violation of probation was filed based on these new charges and various technical violations. In November 1987, Yourn entered a negotiated guilty plea to the three new charges and to violating his рrobation on the two 1986 charges. The court sentenced him to seven years’ imprisonment to be followed by two years’ community control for each of the five robberies, to run concurrently. The scoresheet prepared for this sentencing listed one of the 1987 robberies as the primary offense. The other two 1987 robberies and the two 1986 robberies were shown as additional offenses at conviction (the “1987 scoresheet“). The guidelines sentencing range on the 1987 scoresheet was between seven and nine years’ imprisonment.
Yourn served his sentence and was released. On June 13, 1989, the state filed an affidavit of violation of сommunity control alleging three technical violations. On July 18, 1989, Yourn was arrested on the violation warrant and simultaneously charged with a grand theft that allegedly occurred on July 14, 1989. The state attorney filed an informatiоn on the grand theft charge on August 7, 1989. On August 10, 1989, Yourn entered guilty pleas to the technical violations of community control. Before the sentencing hearing on August 15, 1989, the state informed the court that Yourn had a pending charge of grand theft. Yourn stated he would not be pleading guilty to that charge. The court chose to dispose of the violations of community control on the robbery offenses. It imposed terms of twenty-five years’ prоbation in each of the five cases, to run concurrently, and, as a special condition of probation in one of the cases, a term of one year in the county jail.
On August 22, 1989, Yourn was arraigned beforе a different judge on the grand theft charge and entered a negotiated plea of guilty. The trial court sentenced him to one year in the county jail, to be followed by four years’ probation. His sentencе was to run concurrently with the terms he was already serving for violation of his community control on the robbery offenses. A new scoresheet was prepared for this sentencing that showed the grand theft as the primаry offense at conviction and the robberies as prior record. The guidelines range was twenty-two to twenty-seven years’ imprisonment (the “1989 scoresheet“).
We now arrive at the sentences challenged оn appeal. On May 29, 1992, Yourn was arrested on a warrant for technical violations of his probations. At a hearing on July 9, 1992, the state alleged an additional probation violation based on a misdemeanоr charge. It filed a new sentencing scoresheet,
Because no new felony charges were pending at the 1992 sentencing hearing, a new scoresheet should not have been prepared. The 1992 scoresheet, however, showed the samе charges, points and recommended range as the 1989 scoresheet. We therefore treat the case as though the court used the 1989 scoresheet at the 1992 hearing. We hold that the lower court erred in using that scoresheet to determine Yourn‘s sentence for violation of his robbery probations.
Yourn‘s 1989 grand theft charge was not pending for sentencing at the August 15, 1989 hearing when he was placed on twenty-five years’ probation for violation of community control. See Clark v. State, 572 So.2d 1387 (Fla. 1991) (pending for sentencing means that a verdict or a plea of guilty or nolo contendere has already been obtained). Nor were his violations of community control pending at the August 22, 1989 sentencing for grand theft; he had already been placed on concurrent terms of probation for those violations. Thus, the 1989 scoresheet used in the grand theft sentencing was not usеd to impose sanctions for the 1989 technical violations of community control.
The confusion here arises because the 1992 technical violations were used to revoke six terms of probation that were running concurrently. In order to determine the appropriate sanction for each violation, the lower court must look to the scoresheet used when the defendant was sentenced for each particular offense. Yourn was sentenced on the grand theft charge in 1989, therefore, the 1989 scoresheet was the appropriate one for the court to use when sentencing him for violation оf probation on that charge. Yourn does not challenge the use of this scoresheet in connection with revocation of his probation for grand theft. He was not, however, sentenced for the robbеries based on the 1989 scoresheet. The last time a scoresheet was properly prepared for the robbery offenses was in 1987, when the court sentenced Yourn for five robberies; the three that had occurred that year and the two 1986 charges for which probation was revoked.1 The trial court, therefore, should have used the 1987 scoresheet in determining the sanction to impose for violation of Yourn‘s рrobations on the five robbery charges.2
The 1987 scoresheet showed a recommended range of seven to nine years’ imprisonment.
In Yourn‘s second point on appeal, he argues thаt he did not receive the correct credit for time served. Failure to give appropriate credit may be raised on direct appeal even in the absence of an objection in the trial court. Conyers v. State, 648 So.2d 845 (Fla. 2d DCA 1995). He first asserts that the trial court failed to award him credit for gain time earned on two sentences: (1) his seven-year term of imprisonment imposed in 1987; and (2) his 364-day term in county jail imposed in 1989. We note that the crimеs underlying these sentences were committed before October 1, 1989. As such, Yourn is entitled to credit for gain time as discussed in State v. Green, 547 So.2d 925 (Fla. 1989). At resentencing, the trial court should instruct the Department of Corrections to give Yourn credit fоr any unforfeited gain time accumulated on his previous seven-year sentence. Mongiouvi v. State, 639 So.2d 686 (Fla. 2d DCA 1994). Yourn is also entitled to credit for gain time accrued on his county jail sentence. Perry v. State, 639 So.2d 1090 (Fla. 2d DCA 1994). The trial court must ensure such credit is given.
Yourn also contends that the court fаiled to give him credit for days spent in jail pending hearings on his violations of probation. We do not have a sufficient record to determine whether his assertions on this point are correct. We do, howevеr, note that he is entitled to credit for time spent in jail awaiting sentencing. Yourn may raise this issue with the trial court at his new sentencing hearing.
Reversed and remanded.
PARKER and ALTENBERND, JJ., concur.