FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Polk County; Michael E. Raiden,
L. Dimmig, II, Public Defender, and Brooke Elvington,
Assistant Public Defender, Bartow, for Appellant.
Jo Bondi, Attorney General, Tallahassee, and Chelsea S.
Alper, Assistant Attorney General, Tampa, for Appellee.
he admitted to violations of probation, the trial court
revoked Joseph Richard Jacoby's probation and sentenced
him for grand theft (count two) and grand theft motor vehicle
(count four). On appeal, Jacoby challenges his sentence on
count four of five years in prison suspended, to be served as
five years' probation. He contends that the trial court
should have granted his motion to correct sentencing error
and that his sentence on count four is unlawful because when
combined with the previous incarcerative and probationary
terms the new sentence exceeds the statutory maximum for a
third-degree felony. Jacoby is not entitled to any credit
from his prior probation which he did not serve, but we
reverse the sentence on count four and remand for the trial
court to impose the sentence with credit for time Jacoby
previously served in prison on the charge. We affirm the
revocation of probation on both counts and the sentence on
committed offenses in Polk County in December 2005. In
accordance with a no contest plea in August 2007, the trial
court imposed two concurrent terms of 15.8 months in prison
to be followed by thirty-six months' probation on counts
two and four. The State nolle prossed counts one and three.
After completing the prison term in 2007, Jacoby was sent to
Pinellas County and served time in prison on unrelated
charges. He remained in custody from his August 2007
sentencing date until he was released from the Pinellas
County sentence on March 20, 2012. Jacoby's probationary
term of thirty-six months for the Polk County case was to
begin on March 20, 2012.
February 2015, Jacoby was arrested for illegal use of credit
cards in Volusia County, and an affidavit of violation of
probation (VOP) was filed in the Polk County case. The
affidavit alleged a violation for failure to report to the
probation officer after Jacoby's release from prison in
2007 as of February 4, 2015; commission of the new law
offense of illegal use of credit cards; and failure to report
to his probation officer within seventy-two hours of his
release from prison on March 20, 2012.
VOP hearing, Jacoby admitted to the violations in the
affidavit. The trial court advised Jacoby that if he wished
to contest any of the violations, the State had to prove the
violations were willful. The court offered to set an
evidentiary hearing. Jacoby declined the offer for an
evidentiary hearing and stated that he wished to go forward
with sentencing on the VOP. The trial court imposed a
sentence of thirty months in prison on count two with credit
for all time served. On count four, the trial court imposed a
suspended sentence of five years in prison to be served as
five years of probation. The revocation order reflects that
Jacoby admitted all the violations stated in the affidavit.
filed a motion to correct sentencing error pursuant to
Florida Rule of Criminal Procedure 3.800(b)(2). He asserted
that he was entitled to credit for time previously served in
prison and on probation for the suspended sentence of five
years' probation on count four because without the credit
the sentence exceeds the statutory maximum for a third-degree
felony. He contended that he was entitled to 15.8 months'
credit for time previously served in prison and to 31.4
months' credit for time previously served on probation.
receiving a response from the State, the trial court denied
the motion, stating that Jacoby was ineligible for
probationary credit because his probationary period tolled
when he absconded by failing to report. Neither the response
nor the order expressly addressed the issue of credit for
time previously served in prison.
appeal, the parties agree that Jacoby's probationary
period commenced on March 20, 2012. Jacoby contends that he
was "technically" on probation for 31.4 months
before the VOP affidavit was filed and that he is entitled to
31.4 months' credit against his current five-year period
of probation. When probation is revoked, a defendant is
entitled to credit for time previously served on probation
for a subsequent probationary term for the same offense if it
is necessary to ensure that the total probationary term does
not exceed the statutory maximum for the offense. Young
v. State, 697 So.2d 75, 77 (Fla. 1997); State v.
Summers, 642 So.2d 742, 744 (Fla. 1994); see
also § 948.06(3), Fla. Stat. (2015). But "when
a probationer absconds from supervision, the probationary
period is tolled until the probationer is returned to
supervision." Kimball v. State, 890 So.2d 495,
496 (Fla. 5th DCA 2004); see also Badger v. State,
23 So.3d 813, 817 (Fla. 2d DCA 2009).
Jacoby never actually served any time on his original
probationary term of thirty-six months. He admitted to the
violations in the affidavit, and the trial court revoked
probation based on the violations in the affidavit. The
affidavit asserted that Jacoby did not report within
seventy-two hours of his release from prison in 2012 and that
he never reported at all up to the date the affidavit was
filed in February 2015. Because Jacoby did not serve any time
on probation, the trial court correctly denied any
probationary credit toward Jacoby's new probationary
respect to prison credit, upon revocation of the probationary
term of a probationary split sentence, the trial court may
impose any sentence the court "might have originally
imposed with credit for time served." Young,
697 So.2d at 77; see also § 948.06(2)(b);
McCall v. State, 88 So.3d 1015, 1015-16 (Fla. 2d DCA
2012). The State recognizes that if Jacoby had been sentenced
upon revocation of his probationary split sentence to a new
prison sentence that he would have been entitled to credit
for prison time previously served. See, e.g.,
McCall, 88 So.3d at 1015-16; Swain v.
State, 845 So.2d 314, 315 (Fla. 2d DCA 2003). The ...