The opinion
FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D2022-0609
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DONSHAY M. BROWN,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
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On appeal from the Circuit Court for Leon County.
J. Lee Marsh, Judge.
March 6, 2024
PER CURIAM.
Appellant, Donshay M. Brown, appeals the revocation of his
probation and argues in part that the trial court erred in not
awarding him the correct amount of credit for time served on the
three consecutive sentences that were imposed following the
revocation. We affirm the revocation of Appellant’s probation
without further comment. We agree, however, with Appellant that
the trial court erred in not giving him credit on each of the
consecutive sentences for the previous 100-day concurrent
sentences that he served when his probation was modified in 2019.
See Kimble v. State, 110 So. 3d 469, 469 (Fla. 1st DCA 2013)
(“[B]ecause the appellant’s sentences were originally all running
concurrently to each other, the appellant was entitled to credit on
each count for the time he spent in jail or prison after the original
sentence was imposed but before he was resentenced to
consecutive terms.”); Nichols v. State, 32 So. 3d 718, 718 (Fla. 1st
DCA 2010) (“The appellant challenges the sentences entered upon
his revocation of probation. The state correctly concedes that,
because his original sentences were concurrent, the appellant is
entitled to credit for time served on each of the consecutive
sentences to which he was resentenced.”).
Accordingly, we affirm the revocation of Appellant’s probation
but vacate the sentencing order and remand with directions that
the trial court give Appellant credit for 100 days on each of his
consecutive sentences.
AFFIRMED in part, VACATED in part, and REMANDED with
directions.
LEWIS and NORDBY, JJ., concur; TANENBAUM, J., concurs with
opinion.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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TANENBAUM, J., concurring.
One of the issues on appeal is whether the sentencing order
on the appellant’s revocation of probation accurately awards him
credit for previous time served on his underlying convictions.
Originally, the appellant had been convicted of three counts of
willful child abuse, so three third-degree felonies. See
§ 827.03(2)(c), Fla. Stat. For those convictions, he received
concurrent 18-month sentences, with 24 months of probation to
follow. After he served the original 18-month sentences and went
on probation, the appellant violated. The trial court sentenced him
to an additional 100 days of incarceration on all three counts and
reinstated the appellant on probation. The trial court ran the three
100-day sentences concurrently as time the appellant had already
served in jail on the arrest for the violation of probation.
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Not long after being reinstated, the appellant was charged
with a new law violation, and also with violating his probation on
all three counts based on that new law violation. The appellant
agreed to have the trial on his new criminal charge serve as the
evidentiary hearing for the probation violation charges. After
hearing the evidence presented at the trial and the testimony of
the probation officer in a separate hearing, the trial court
concluded that the appellant had violated his probation, revoked
it, and sentenced the appellant to the maximum term for each of
the child-abuse counts—five years. The trial court specified that
these three five-year sentences were to run consecutively.
The trial court at first ordered that the Department of
Corrections give him credit for prior, concurrent prison sentences
served on the child-abuse counts, under section 921.0017, Florida
Statutes. It also ordered a credit of 782 days for time served in jail
since the last arrest for the probation violation. See § 921.0017,
Fla. Stat. (“The court shall determine the amount of jail-time
credit to be awarded for time served between the date of arrest as
a violator and the date of recommitment, and shall direct the
Department of Corrections to compute and apply credit for all
other time served previously on the prior sentence for the offense
for which the offender is being recommitted.”). The trial court
failed to order credit for the 100 days that the appellant had served
concurrently on all three counts on the prior probation violation.
After this appeal was taken, counsel sought to correct the
appellant’s sentence by filing a motion under Florida Rule of
Criminal Procedure 3.800(b)(2). Counsel indicated in the motion,
in a footnote, that the appellant “concedes that he is entitled to the
782 days of credit since last arrest only on count I.” (emphasis
supplied). Still, counsel argued, among other things, that the trial
court should have given credit for the 100 days previously served
in jail because the department would not otherwise know about
that jail sentence when calculating the appellant’s end-of-sentence
date. The State agreed that the appellant should get that credit.
When the trial court amended the sentence, however, it
indicated that the appellant gets credit for 882 days (the 782 days
since the last arrest plus the 100 days for the prior sentence)—but
specified now that the credit would only be “as to count I.” Because
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the new sentences on the child-abuse conviction now were to run
consecutively, the trial court correctly amended the sentencing
order to make clear that the 782 days of jail time since the last
arrest applied only to one of the five-year terms. The trial court
erred, though, when it did not apply the previous 100-day
concurrent sentences to all three of the new sentences. Because of
the error, the consecutive sentences imposed on counts two and
three are illegal. Without the credit for the 100 days that the
appellant served as a prior sentence on those latter two counts, the
five-year sentences imposed for those counts—when the
uncredited 100 days are added on top—effectively exceed the
statutory maximum for each count.
The disposition here is required so that legal sentences may
be imposed. Cf. § 921.0017, Fla. Stat.; State v. Rabedeau, 2 So. 3d
191, 193 (Fla. 2009) (approving holding “that [the defendant] was
entitled to credit for time served on his concurrent sentences in
each of the three cases for which consecutive sentences were
subsequently imposed after he violated probation” because “by
imposing sentences to be served concurrently, a trial court is
permitting a defendant to serve multiple sentences at the same
time”).
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Jessica J. Yeary, Public Defender, and Pamela D. Presnell,
Assistant Public Defender, Tallahassee, for Appellant.
Ashley Moody, Attorney General, and Virginia Chester Harris,
Assistant Attorney General, Tallahassee, for Appellee.
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