Opinion
3D23-737
06-12-2024
Azaria Okeefe Adams, Appellant, v. The State of Florida, Appellee.
Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public Defender, for appellant. Ashley Moody, Attorney General, and Sandra Lipman, Senior Assistant Attorney General, for appellee.
Not final until disposition of timely filed motion for rehearing.
An Appeal from the Circuit Court for Miami-Dade County Lower Tribunal Nos. F18-2580, F18-2581, Marisa Tinkler Mendez, Judge.
Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public Defender, for appellant.
Ashley Moody, Attorney General, and Sandra Lipman, Senior Assistant Attorney General, for appellee.
Before LOGUE, C.J., and SCALES and GORDO, JJ.
GORDO, J.
ON CONFESSION OF ERROR
Azaria Adams ("Adams") appeals a final order of revocation of probation. We have jurisdiction. Fla. R. App. P. 9.030(b)(1)(A). We find the trial court erred in not properly awarding Adams the credit for time he served in Florida prior to his revocation. As such, we reverse and remand with instructions that the trial court may restructure the sentence to reflect its articulated sentencing goal, while properly awarding Adams the credit for time served in Florida to which he is entitled.
In February 2020, Adams entered a negotiated plea as to his two open cases and was sentenced to twenty-two months' imprisonment with credit for time served, followed by five years of probation. The State thereafter filed an affidavit of violation of probation, alleging that Adams violated his probation by committing nine violations. The first three violations were technical, alleging Adams failed to undergo drug and alcohol treatment, failed to complete a mental health evaluation and failed to complete his required community service hours. The remaining allegations were substantive violations, alleging Adams committed six new law offenses while he was living in Louisiana. Following a probation violation hearing, the trial court revoked Adams' probation and sentenced him to four years in prison.
Prior to the original sentence, Adams served 700 days in county jail.
At the hearing, the trial court orally pronounced that it was revoking Adams' probation based solely on the new law violations. The written order of revocation, however, included all nine violations. In imposing the four-year sentence, the trial court awarded credit from Adams' last booking date to the date of the sentencing. The trial court did not award Adams credit for the time he served in Florida prior to the original sentence or for the time he served in the Louisiana jail. This appeal followed.
Specifically, the written order finds that Adams violated condition (1) by failing to undergo a drug and alcohol evaluation; condition (1) by failing to undergo a mental health evaluation; and condition (8) by failing to successfully complete 50 hours of community service.
The State commendably concedes that Adams was entitled to receive credit for the time he spent in the Florida county jail prior to the original sentence. See § 921.161(1), Fla. Stat. ("A sentence of imprisonment shall not begin to run before the date it is imposed, but the court imposing a sentence shall allow a defendant credit for all of the time she or he spent in the county jail before sentence. The credit must be for a specified period of time and shall be provided for in the sentence."); Tomiuk v. State, 663 So.2d 681, 681 (Fla. 5th DCA 1995) ("[J]ail time credit is not forfeited when a defendant is resentenced as a result of a violation of probation or community control and, therefore, the defendant is entitled to receive credit for the 262 days he served prior to the imposition of the original sentence."). Further, the State asserts that merely reversing and remanding with directions to award the additional credit would negate the trial court's intent in sentencing Adams. As a result, it requests we remand the case to the trial court to award the proper amount of credit for time previously served and to permit the trial court to restructure the sentence to carry out its clear and unequivocal articulated original sentencing goal.
Upon review of the sentencing transcript, we find the trial court clearly articulated its intent that Adams serve a four-year prison sentence for committing the new law violations. Throughout the hearing, the trial court plainly rejected the defense's recommendation that Adams receive probation instead of imprisonment or some lesser term of imprisonment, reiterated its belief that the prison environment would provide Adams with the resources he needs to appropriately address his issues and made it clear she intended him to no longer be on probation once he was done serving his sentence. Under these circumstances, consistent with our decision in Toombs, we remand the cause for the trial court to restructure the sentence to impose a lawful sentence consistent with the trial court's articulated original sentencing goal, while awarding Adams credit for the time he served while in Florida.See Toombs v. State, 404 So.2d 766, 768 (Fla. 3d DCA 1981) ("Since it was so clearly the trial court's intent that Toombs serve an additional year in prison, and since the trial court was empowered to impose a sentence of sufficient length after crediting the time served to carry out that intent . . . we reject Toombs' argument that the trial court's technical error results in setting Toombs free. We accordingly reverse that portion of the sentence under review incarcerating the defendant for a year and a day and remand this case to the trial court for the imposition of an appropriate sentence of incarceration which will explicitly give to Toombs credit for time served.") (internal citation omitted) (footnote omitted); Gonzalez v. State, 194 So.3d 380, 383 (Fla. 3d DCA 2016) ("Where the record clearly and unequivocally establishes the trial court's articulated sentencing goal and further establishes that this goal would be undermined by a reversal and remand for the sole purpose of awarding proper credit for time previously served, we hold, consistent with Toombs, that the proper remedy is to reverse the sentence and remand with directions that the court properly award the credit while permitting the trial court the opportunity to restructure the sentence to achieve its clear and unequivocal sentencing goal as articulated at the original sentencing."); Mathis v. State, 649 So.2d 279, 280 (Fla. 3d DCA 1995) ("[W]e remand so that the trial judge may either grant credit for time served or restructure the sentence as permitted by Toombs.").
We agree with the trial court that Adams is not entitled to credit for the time he served in the Louisiana jail. See Kronz v. State, 462 So.2d 450, 451 (Fla. 1985) ("[We] hold that the term 'county jail' [in section 921.161, Florida Statutes] is applicable only to Florida jails and, in our view, was not intended by the legislature to apply to various places of incarceration in other jurisdictions.").
Further, because the written order of probation revocation does not conform to the trial court's oral pronouncement as it includes the technical violations the court did not orally find Adams violated, we also remand for the entry of an order consistent with the court's oral pronouncement. See Laffitte v. State, 16 So.3d 315, 316 (Fla. 3d DCA 2009) ("A written order of probation revocation must conform to the court's oral pronouncement at a defendant's probation revocation hearing." (quoting Salvatierra v. State, 691 So.2d 32, 32 (Fla. 3d DCA 1997))); Miller v. State, 328 So.3d 1115, 1116 (Fla. 2d DCA 2021) ("Where the trial court's oral pronouncement and written revocation order conflict, the written revocation order must be corrected to comport with the oral pronouncement."); Hernandez v. State, 254 So.3d 1091, 1092 (Fla. 3d DCA 2018) ("The written probation revocation order, however, does not conform to the oral pronouncements the trial court made at the revocation hearing . . . As such, we remand for correction of the written order for revocation so that it conforms to the trial court's oral pronouncement.") (footnote omitted).
Reversed and remanded with instructions.