Burgess v. State

365 So.3d 1275

Jarred Rashad BURGESS, Appellant,

v.STATE of Florida, Appellee.

Case Nos. 5D22-2761

5D22-2762

5D22-2763

District Court of Appeal of Florida, Fifth District.

Opinion filed July 21, 2023

Matthew J. Metz, Public Defender, and Ryan M. Belanger, Assistant Public Defender, Daytona Beach, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Deborah A. Chance and Roberts J. Bradford, Jr., Assistant Attorneys General, Daytona Beach, for Appellee.

REVISED OPINION

LAMBERT, J.

On the court's own motion, we withdraw the opinion released on June 16, 2023, in these consolidated cases and replace it with the following revised opinion.

In these consolidated appeals, Jarred Burgess challenges the trial court's orders revoking his community control in three cases below and the judgments and sentences thereafter imposed. Burgess was originally sentenced to concurrent probationary terms for several third-degree felonies in circuit court case numbers 2019-CF-3193 and 2020-CF-1032. Burgess then allegedly violated that probation; and while his violation of probation proceedings were pending, Burgess was charged with another third-degree felony¹ in circuit court case number 2021-CF-533. Upon revocation of Burgess's probation, by negotiated plea, the trial court imposed identical concurrent split sentences on all charges in all three cases for 181 days in jail (with 181 days of jail credit), six months of community control, and thirty-six months of drug offender probation.

Eight days after imposition of the sentences, Burgess's community control officer filed an affidavit alleging that Burgess had violated his community control by failing to report and "absconding" from supervision. Following revocation of his community control, Burgess was sentenced by the court to serve a split sentence of thirty months in prison, to be followed by twenty-four months of drug offender probation, on all counts in each case, with the sentences to be served concurrently.

We affirm the revocation of Burgess's community control without further discussion. For the following reasons, we reverse the judgments and sentences in circuit court cases 2019-CF-3193 and 2020-CF-1032; and we remand with directions for the trial court to enter amended judgments and sentences that award Burgess credit, as outlined below, against his twenty-four-month drug offender probation sentences.

In Waters v. State , 662 So. 2d 332, 333 (Fla. 1995), the Florida Supreme Court held that when a trial court imposes a new term of probation as part of a split sentence following revocation, if the new term of probation, together with the other sanctions imposed, plus the time the defendant previously served on probation, totals more than the statutory maximum for the underlying offense, the trial court is to credit the defendant for time previously served on probation so that the total period of probation and imprisonment does not exceed the statutory maximum. Waters is applicable here.

In circuit court case numbers 2019-CF-3193 and 2020-CF-1032, Burgess had previously served more than six months of probation before his earlier term of probation in each case was revoked. When this total amount of probation previously served is added to Burgess's current split sentences of thirty months in prison, plus the new twenty-four months of drug offender probation, the aggregate total exceeds the statutory cap of five years² for his third-degree felonies. Accordingly, so that this statutory cap is not exceeded, Burgess is entitled to an award of probation credit for that amount of time in...