Archive for December, 2010

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Avery K. Tolbert, Appellant, vs. The State of Florida, Appellee.

Wednesday, December 29th, 2010

Third District Court of Appeal

State of Florida, July Term, A.D. 2010

Opinion filed December 29, 2010.

Not final until disposition of timely filed motion for rehearing.

________________

No. 3D09-1162

Lower Tribunal No. 06-40614

________________

Avery K. Tolbert,

Appellant,

vs.

The State of Florida,

Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Nushin Sayfie, Judge.

Carlos J. Martinez, Public Defender, and Howard K. Blumberg, for appellant.

Bill McCollum, Attorney General, and Ansley B. Peacock, for appellee.

Before RAMIREZ, C.J., and SALTER, JJ., and SCHWARTZ, Senior Judge.

PER CURIAM.

Affirmed. See Oregon v. Bradshaw, 462 U.S. 1039 (1983); Diaz v. Sec’y

for the Dep’t of Corr., 313 F. App’x 262, 2009 WL 397748 (C.A. 11 (Fla.)).

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Francisco Mendoza, Appellant, vs. The State of Florida, Appellee

Wednesday, December 29th, 2010

Third District Court of Appeal

State of Florida, July Term, A.D. 2010

Opinion filed December 29, 2010.

Not final until disposition of timely filed motion for rehearing.

________________

No. 3D08-2750

Lower Tribunal No. 06-25133-B

________________

Francisco Mendoza,

Appellant,

vs.

The State of Florida,

Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Barbara Areces, Judge.

Paul Morris, for appellant.

Bill McCollum, Attorney General, and Ansley B. Peacock, Assistant Attorney General, for appellee.

Before ROTHENBERG, LAGOA, and SALTER, JJ.

ROTHENBERG, J.

The defendant, Francisco Mendoza, appeals his conviction for aggravated battery, as a lesser included offense of attempted first-degree premeditated murder on the basis that the information did not plead the necessary elements of aggravated battery. Although we conclude that the argument raised on appeal was not preserved for appellate review, we also find no merit to the argument raised. See Washington v. State, 912 So. 2d 344, 346 (Fla. 3d DCA 2005) (holding that the allegation that the defendant discharged a firearm sufficiently alleged the use of a deadly weapon, and thus, the charging document contained the requisite elements of attempted aggravated battery); Bell v. State, 394 So. 2d 570, 571 (Fla. 5th DCA 1981) (finding that aggravated battery was properly charged as a lesser included offense of attempted first-degree murder where the information alleged that the defendant did shoot the victim with a firearm).

Affirmed.


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2D10-598 / Casey v. State

Wednesday, December 29th, 2010

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED.
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
ANTHONY RAY CASEY, )
(
Appellant, )
(
v.  )  Case No. 2D10-598
(
STATE OF FLORIDA, )
(
Appellee. )
(
Opinion filed December 29, 2010.
Appeal from the Circuit Court for Pasco
County; Pat Siracusa, Judge.
James Marion Moorman, Public Defender,
and Cynthia J. Dodge, Assistant Public
Defender, Bartow, for Appellant.
Bill McCollum, Attorney General,
Tallahassee, and Ronald Napolitano,
Assistant Attorney General, Tampa, for
Appellee.
WHATLEY, Judge.
Anthony Ray Casey appeals an order revoking his probation and
sentencing him to a previously suspended term of five years in prison.  Casey was
originally charged with and entered a plea to grand theft and was sentenced to five
years in prison, suspended, and five years of probation.  He thereafter admitted   – 2 -
violating his probation and was given the suspended sentence.  Casey argues, and the
State correctly concedes, that his sentence must be reversed because the trial court
mistakenly believed that it was required to impose the suspended portion of his
sentence.
At the original sentencing hearing for grand theft, the trial court told Casey
that if he violated the terms of his probation, “you’re going to get five years Florida State
Prison because I’ve suspended it. . . .  Because I’ve suspended it, so I won’t have any
discretion.  Unless the State agrees, I’ve pretty much bound my hands.”  Thereafter,
before accepting Casey’s admission to the violation of probation, the trial court stated as
follows:
Is it your intention to admit your violation of probation today
with the understanding that this is an open plea; I can
sentence you to any lawful sentence, up to five years in
prison – I believe, actually, you have five years in prison
suspended, so there’s not a lot of mystery about what’s
going to happen here, I don’t think.
Here, as in Nadzo v. State, 24 So. 3d 690, 691-92 (Fla. 2d DCA 2009), the
trial court was under the mistaken belief that it was mandatory to impose the previously
suspended prison term.  In Nadzo, 24 So.3d at 692, this court noted that the trial court
could have continued, modified, or revoked the appellant’s probation and that, after
deciding to revoke the probation, the trial court could impose a sentence less than the
original sentence.  See also Cowart v. State, 860 So. 2d 1041, 1042 (Fla. 5th DCA
2003); Lacey v. State, 831 So. 2d 1267, 1270 (Fla. 4th DCA 2002).
Because the trial court appears to have believed it was required to
sentence Casey to five years in prison, we reverse and remand the case for
reconsideration.   – 3 -
CASANUEVA, C.J., and BLACK, J., Concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.  IN THE DISTRICT COURT OF APPEAL  OF FLORIDA  SECOND DISTRICT ANTHONY RAY CASEY, )  (  Appellant, )  (  v.  )  Case No. 2D10-598  (  STATE OF FLORIDA, )  (   Appellee. )  (     Opinion filed December 29, 2010. Appeal from the Circuit Court for Pasco County; Pat Siracusa, Judge. James Marion Moorman, Public Defender,    and Cynthia J. Dodge, Assistant Public    Defender, Bartow, for Appellant.          Bill McCollum, Attorney General,    Tallahassee, and Ronald Napolitano,  Assistant Attorney General, Tampa, for Appellee. WHATLEY, Judge.  Anthony Ray Casey appeals an order revoking his probation and sentencing him to a previously suspended term of five years in prison.  Casey was originally charged with and entered a plea to grand theft and was sentenced to five years in prison, suspended, and five years of probation.  He thereafter admitted   – 2 -violating his probation and was given the suspended sentence.  Casey argues, and the State correctly concedes, that his sentence must be reversed because the trial court mistakenly believed that it was required to impose the suspended portion of his sentence.    At the original sentencing hearing for grand theft, the trial court told Casey that if he violated the terms of his probation, “you’re going to get five years Florida State Prison because I’ve suspended it. . . .  Because I’ve suspended it, so I won’t have any discretion.  Unless the State agrees, I’ve pretty much bound my hands.”  Thereafter, before accepting Casey’s admission to the violation of probation, the trial court stated as follows:  Is it your intention to admit your violation of probation today with the understanding that this is an open plea; I can sentence you to any lawful sentence, up to five years in prison – I believe, actually, you have five years in prison suspended, so there’s not a lot of mystery about what’s going to happen here, I don’t think.  Here, as in Nadzo v. State, 24 So. 3d 690, 691-92 (Fla. 2d DCA 2009), the trial court was under the mistaken belief that it was mandatory to impose the previously suspended prison term.  In Nadzo, 24 So.3d at 692, this court noted that the trial court could have continued, modified, or revoked the appellant’s probation and that, after deciding to revoke the probation, the trial court could impose a sentence less than the original sentence.  See also Cowart v. State, 860 So. 2d 1041, 1042 (Fla. 5th DCA 2003); Lacey v. State, 831 So. 2d 1267, 1270 (Fla. 4th DCA 2002). Because the trial court appears to have believed it was required to sentence Casey to five years in prison, we reverse and remand the case for reconsideration.   – 3 -CASANUEVA, C.J., and BLACK, J., Concur.

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2D10-273 / A.B.S. v. State

Wednesday, December 29th, 2010

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING

MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
A.B.S., )
)
Appellant, )
)
v. ) Case No. 2D10-273
)
STATE OF FLORIDA, )
)
Appellee. )
___________________________________)
Opinion filed December 29, 2010.

Appeal from the Circuit Court for Pinellas

County; Irene H. Sullivan, Judge.

James Marion Moorman, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General,

Tallahassee, and Katherine Coombs Cline,

Assistant Attorney General, Tampa, for

Appellee.

SILBERMAN, Judge.

A.B.S., a juvenile, seeks review of an order withholding adjudication and

placing him on four months of probation for possession of a controlled substance.

A.B.S. admitted to the charge while reserving the right to appeal the denial of his motion

to suppress. Because the search of A.B.S.’s person was not supported by a legal basis,

we reverse.

A.B.S. was taken into custody as a possible runaway in need of services pursuant to section 984.13, Florida Statutes (2009). The officer who took A.B.S. into custody stated that, at a minimum, he was going to take A.B.S. home. Before the officer placed A.B.S. inside his police cruiser, he handcuffed and searched A.B.S. as was his practice. During the search, the officer retrieved a set of keys from the right, front pocket of A.B.S.’s pants. The keychain had an aluminum screw-top container on it that the officer stated was of the type commonly used to store illegal drugs. The officer shook the container, and it rattled in a way that made the officer suspect there were pills inside. The officer then opened the container and discovered a controlled substance. The officer acknowledged that he did not conduct a pat down before reaching into A.B.S.’s pocket.

We reverse the denial of A.B.S.’s motion to suppress the contents of the container because the officer did not have a legal basis to search A.B.S.’s person before transporting him in his cruiser. See L.C. v. State, 23 So. 3d 1215, 1218 (Fla. 3d DCA 2009). Circumstances that allow a juvenile to be taken into custody under section 984.13 are not crimes; therefore, the search incident to arrest exception to the warrant requirement does not apply. Id.

Further, in this case the officer had no indication that A.B.S. was in possession of either a weapon or contraband when he searched A.B.S. He admitted that he searched A.B.S. solely because it was his policy to search people before transporting them in his cruiser. As the Third District noted in L.C., “Although we appreciate the concern of officer safety, we are aware of no case that stands for the proposition officers can search an individual without having performed a pat-down

- 2 -

simply because the individual is being placed in a police vehicle.” Id. at 1219. Because the search was conducted without a legal basis, the trial court erred in denying the motion to suppress.

Reversed and remanded.

DAVIS and BLACK, JJ., Concur.

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10-5531 KERICK VAN TEAMER, v. STATE OF FLORIDA

Wednesday, December 29th, 2010

KERICK VAN TEAMER,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

_______________________________/

Opinion filed December 29, 2010.

Petition Seeking Belated Appeal — Original Jurisdiction.

Patrece C. Cashwell, Pensacola, for Petitioner.

Bill McCollum, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.

PER CURIAM.

The amended petition seeking a belated appeal of the judgment and sentence rendered on August 26, 2010, in Escambia County Circuit Court case number 1009-CF-001565, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal in accordance with Florida Rule of Appellate Procedure 9. 141(c)(5)(D). If petitioner qualifies for the appointment of counsel at public expense, the lower tribunal shall appoint counsel to represent him on appeal.

BENTON, C.J., VAN NORTWICK and ROBERTS, JJ., CONCUR.

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10-4044 CARLOS D. COTTON, v. STATE OF FLORIDA

Wednesday, December 29th, 2010

NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED.
CASE NO. 1D10-4044

CARLOS D. COTTON,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

_______________________________/

Opinion filed December 29, 2010.

Petition for Writ of Mandamus — Original Jurisdiction.

Carlos D. Cotton, pro se, Petitioner.

Bill McCollum, Attorney General, and Edward C. Hill, Jr., Assistant Attorney General, Tallahassee, for Respondent.

PER CURIAM.

The petition for writ of mandamus is granted. The trial court is directed to enter an order disposing of petitioner’s amended motion for postconviction relief within 30 days or, if warranted, enter an order scheduling an evidentiary hearing on the amended motion. Because we are confident the trial court will comply with this directive, we withhold formal issuance of the writ at this time.

BENTON, C.J., VAN NORTWICK and ROBERTS, JJ., CONCUR.

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10-3963 FREDDIE LEE WILLIAMS, v. STATE OF FLORIDA

Wednesday, December 29th, 2010

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
FREDDIE LEE WILLIAMS, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Petitioner, DISPOSITION THEREOF IF FILED.
v. CASE NO. 1D10-3963
STATE OF FLORIDA,
Respondent.
_______________________________/
Opinion filed December 29, 2010.

Petition Alleging Ineffective Assistance of Appellate Counsel — Original

Jurisdiction.

Freddie Lee Williams, pro se, Petitioner.

Bill McCollum, Attorney General, and Brooke Poland, Assistant Attorney General, Tallahassee, for Respondent.

PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is granted.

As the state concedes, appellate counsel was ineffective for failing to respond to

orders of this court and permitting the appeal of the October 20, 2008, order denying petitioner’s motion for postconviction relief in Duval County Circuit Court case number 2003-CF-13411, to be dismissed. We conclude that under the circumstances of this case, the proper and most efficient remedy is to grant

petitioner a new appeal of that order. Accordingly, upon issuance of mandate in this cause, a copy of this opinion shall be furnished to the clerk of the circuit court for treatment as a notice of appeal.

BENTON, C.J., VAN NORTWICK and ROBERTS, JJ. , CONCUR.

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10-3919 JEREMIAH BUTLER, v. STATE OF FLORIDA

Wednesday, December 29th, 2010

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
NOT FINAL UNTIL TIME EXPIRES TO
JEREMIAH BUTLER, FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D10-3919
STATE OF FLORIDA,
Appellee.
_____________________________/
Opinion filed December 29, 2010.

An appeal from the Circuit Court for Duval County.

David M. Gooding, Judge.

Jeremiah Butler, pro se.

Bill McCollum, Attorney General, for Appellee.

PER CURIAM.

Appellant, Jeremiah Butler, appeals the trial court’s order striking his motion

to correct illegal sentence. Fla. R. Crim. P. 3.800. The basis for the trial court’s order was a previous order entered by that court sanctioning Mr. Butler for his repeated filings of frivolous and abusive pleadings. The sanctions included

prohibiting Butler from filing any further pro se pleadings and motions in the

Fourth Judicial Circuit pertaining to case number 1996-CF-5156, the criminal case resulting in the life sentence Mr. Butler is currently serving.

Noting that this is the twenty-sixth of twenty-seven appellate actions filed by Appellant in this court, twenty-two of them pertaining to case number 96-5156- CFA (4th Cir., Duval County), we issued him an order to show cause why this court should not summarily affirm the order to be reviewed, under Rule 9.315, Florida Rules of Appellate Procedure; why Appellant should not be sanctioned pursuant to Rule 9.410, Florida Rules of Appellate Procedure for filing a frivolous appeal; and why such sanctions should not include a direction to the Clerk of this Court to reject any future pleadings, petitions, motions, letters, documents, or other filing submitted to this Court by Appellant relating to his conviction and sentence. Mr. Butler responded with a lengthy document reiterating his challenges to his sentence rather than explaining his numerous filings or pointing out any error in the trial court’s order.

Mr. Butler’s response fails to show cause why the actions described in this court’s order should not take place. Courts’ authority to regulate the proceedings to promote the orderly administration of justice, including the efficient use of the limited judicial resources available to the system and litigants, is firmly established.State v. Spencer, 751 So. 2d 47 (Fla. 1999); Robinson v. State, 949 So. 2d 1091 (Fla. 4th DCA 2007); Hepburn v. State, 934 So. 2d 515 (Fla. 3d DCA

2

2005); Isley v. State, 652 So. 2d 409 (Fla. 5th DCA 1995). Considering Appellant’s incessant initiation of proceedings in this court, and finding this appeal frivolous, we find that Appellant has abused the judicial process and hindered the ability of this Court to orderly administer justice to those who have genuine disputes and colorable claims. See Pettway v. McNeil, 987 So. 2d 20 (Fla. 2008).

Accordingly, the order on appeal is AFFIRMED. In addition, in order to preserve the right of access for all litigants and promote the interests of justice, the Clerk of this Court is hereby instructed to reject any future pleadings, petitions, motions, documents, or other filings submitted by Jeremiah Butler, DC #J02866, that are related to his convictions and sentences in Case No. 1996 CF 05156 (4th Cir., Duval), unless signed by a member in good standing of The Florida Bar.

It is so ordered.

BENTON, C.J., PADOVANO, and CLARK, JJ., CONCUR.

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09-4107 FREDDIE J. CASH, v. STATE OF FLORIDA

Wednesday, December 29th, 2010

FREDDIE J. CASH,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

_____________________________/

Opinion filed December 29, 2010.

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

CASE NO. 1D09-4107

An appeal from the Circuit Court for Duval County.

Linda F. McCallum, Judge.

Freddie J. Cash, pro se, Appellant.

Bill McCollum, Attorney General, and Ian M. Cotner, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

The appellant, Freddie J. Cash, appears before this court for the ninth time in

connection with his conviction of sexual battery in Duval County, Fourth Judicial

Circuit case number 90-9224-CF. After reviewing the issue raised by Mr. Cash in this appeal and determining that it was without merit, this court issued a Spencerorder directing Mr. Cash to show cause why he should not be prohibited from 1

future pro se access to this court in this connection with this case. See State v. Spencer, 751 So. 2d 47 (Fla. 1999). After carefully reviewing Mr. Cash’s response, we conclude that Mr. Cash is abusing the judicial system. Therefore, he is prohibited from further pro se filings. See Tucker v. State, 40 So. 3d 920 (Fla. 5th DCA 2010); Simpkins v. State, 909 So. 2d 427, 428 (Fla. 5th DCA 2005).

Accordingly, in order to conserve judicial resources, we prohibit Freddie J. Cash from filing with this Court any further pro se pleadings or papers concerning Duval County, Fourth Judicial Circuit case number 90-9224-CF. The Clerk of this Court is directed not to accept any further pro se filings concerning this case. Such pleadings will be summarily rejected by the Clerk, unless they are filed by a member in good standing of The Florida Bar.

AFFIRMED; future pro se filings PROHIBITED.

BENTON, C.J., THOMAS and ROWE, JJ., CONCUR.

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08-3685 PATRICK A. FAIRCLOTH, v. STATE OF FLORIDA

Wednesday, December 29th, 2010

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
PATRICK A. FAIRCLOTH, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant/Cross-Appellee, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D08-3685
STATE OF FLORIDA,
Appellee/Cross-Appellant.
_____________________________/
Opinion filed December 29, 2010.
An appeal from the Circuit Court for Leon County.
James C. Hankinson, Judge, and Angela C. Dempsey, Judge.
Laura Anstead, Assistant Conflict Counsel, and Jeffrey Lewis, Regional Conflict Counsel, Region One, Tallahassee, for Appellant.
Bill McCollum, Attorney General, and Ian M. Cotner, Assistant Attorney General, Tallahassee, for Appellee.
PER CURIAM.
Appellant, Patrick A. Faircloth, challenges the revocation of his probation,
contending  the  State  failed  to  prove  various  new  law  violations  alleged  in  the
violation of probation report. On cross-appeal, the State claims error in the allocation of credit for time served to both counts of consecutive sentences. We
reverse and remand for reconsideration of the revocation, and, if upheld, appropriate modification of the sentences.
On May 21, 2004, the State charged appellant by information with aggravated stalking (Count I) and attempted burglary of a dwelling (Count II). After Faircloth entered a plea of nolo contendere to the offenses as charged, the trial court sentenced appellant to 286 days in county jail (less 286 days for time served) and 36 months’ probation, the sentences to run concurrently. On February 11, 2005, the court entered a judgment and sentence adjudicating appellant guilty of the crimes alleged.
On January 22, 2007, the State filed a violation of probation report alleging that Faircloth failed to live and remain at liberty without violating the law by committing the criminal offenses of resisting an officer with violence, fleeing and eluding a law enforcement officer, driving while license suspended, and battery on a law enforcement officer. The State filed two addendums to the report, alleging that appellant also gave a false identity to a law enforcement officer and committed fraud by insufficient funds.
After a hearing on the alleged violations, the trial court (Judge Hankinson) found that Faircloth violated the terms of his probation by giving a false identity to a law enforcement officer, resisting an officer without violence, driving while license suspended, and battery on a law enforcement officer. As a result of these
2
new law violations, the court revoked probation on each count and adjudicated appellant guilty of the underlying offenses. The court sentenced Faircloth to 60 months in prison with credit for 439 days’ time served on Count I (aggravated stalking) and 24 months in prison on Count II (attempted burglary of a dwelling). In a written order revoking probation, the court announced that the sentences were to run consecutively.
In an amended motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), appellant asserted an entitlement to 792 days’ credit for time served. Reasoning that the court had sentenced him to concurrent terms on the original convictions, Faircloth also argued that the court should have allocated the jail time credit to both Counts I and II.
In its response, the State advocated that the motion be granted in part and denied in part. Though raising some minor disagreements with the computation of gain time, for purposes of this cross-appeal, the State argued that appellant was entitled to this credit on only one of the counts, because the court (Judge Hankinson) ultimately resentenced appellant to consecutive, rather than concurrent, terms. On June 22, 2009, the trial court (Judge Dempsey) entered an order granting the amended motion in its entirety.
We review an order revoking probation for abuse of discretion. See State v. Carter, 835 So. 2d 259, 262 (Fla. 2002) (recognizing that the “trial court has broad
3
discretion to determine whether there has been a willful and substantial violation of
a term of probation and whether such a violation has been demonstrated by the
greater weight of the evidence” (citing Van Wagner v. State, 677 So. 2d 314 (Fla.
1st DCA 1996))). As Faircloth points out, knowledge of the license suspension is a requisite element of the crime of driving while license suspended. See
§ 322.34(2), Fla. Stat. (2007) (providing that a person is guilty of driving while
license suspended  if the person,  “knowing”  that  his  “driver’s  license  or driving
privilege has been . . . suspended,” “drives any motor vehicle upon the highways of
this state while such license or privilege is . . . suspended . . .”).   Here, we must
conclude that the State failed to offer evidence that appellant knew his license or
driving privilege had been suspended.  Accordingly, the court erred in determining
that Faircloth violated his probation by committing the offense of driving while
license suspended.  See id.
Though we do not question that appellant violated the terms of his probation
in the other ways enumerated by the trial court, we are not constrained to uphold
the revocation order:
Where revocation of a defendant’s probation . . . is based on violation of more than one condition of probation . . . and one of the grounds for revocation is found not to be supported by the record, but the other ground is a substantial violation supported by the record and could by itself support revocation, appellate courts have reversed the order of revocation and remanded for reconsideration by the trial court if it was unclear from the record that the trial court would have revoked the probation . . . based solely on the remaining substantial violation.
4
See Gavins v. State, 587 So. 2d 487, 491 (Fla. 1st DCA 1991) (citing Sampson v. State, 375 So. 2d 325 (Fla. 2d DCA 1979)). Here, the record does not clearly reveal whether the trial court would have revoked probation based on the remaining violations. Accordingly, we will remand the matter for consideration of this question. See Gavins, 587 So. 2d at 491.
Turning to the cross-appeal, we have de novo review. See Willard v. State, 22 So. 3d 864, 864 (Fla. 4th DCA 2009) (holding that the appropriate standard of review for a motion to correct sentencing error is de novo, because such a motion “involves a ‘purely legal issue’” (citing T.L.S. v. State, 949 So. 2d 290, 291 (Fla. 5th DCA 2007))). “[A]ny person sentenced must receive credit for all time spent in jail prior to the imposition of sentence.” See Barnishin v. State, 927 So. 2d 68, 70 (Fla. 1st DCA 2006) (citing § 921.161(1), Fla. Stat. (2004)). When consecutive sentences are imposed, however, “the defendant ‘is not entitled to have his jail time credit pyramided by being given credit on each sentence for the full time he spends in jail awaiting disposition.’” See Daniels v. State, 491 So. 2d 543, 545 (Fla. 1986) (quoting Martin v. State, 452 So. 2d 938, 938-39 (Fla. 2d DCA 1984)).
The hearing transcript and the written revocation order demonstrate that the trial court intended Faircloth’s sentences to run consecutively. Accordingly, appellant is entitled to credit “only on the first of consecutive sentences.” See
Barnishin, 927 So. 2d at 71. The order granting the amended motion to correct 5
sentencing error fails to the extent that it applied jail time credit to both terms of the consecutive sentences. For these reasons, we REVERSE the revocation order, REMAND for reconsideration of the revocation, and, if upheld, for appropriate application of gain time.
KAHN, LEWIS, and CLARK, JJ., CONCUR.
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