Larimore v. State

Full title: WILLIAM TODD LARIMORE, Appellant, v. STATE OF FLORIDA, Appellee

Court: District Court of Appeal of Florida, First District

Date published: Mar 12, 2002

Case No. 1D01-2360 (Fla. Dist. Ct. App. Mar. 12, 2002)

Opinion

Case No. 1D01-2360.

Opinion filed March 12, 2002.

An appeal from the Circuit Court for Duval County. Charles W. Arnold, Judge.

Appellant, pro se.

Robert A. Butterworth, Attorney General, Elizabeth Fletcher Duffy, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

The appellant challenges the summary denial of his rule 3.800 motion in which he sought credit for time served on a split sentence. Because the appellant was entitled to credit for time served on the incarcerative portion of his sentence upon resentencing for the violation of the probationary portion of his sentence, we reverse.

The appellant was originally charged in two cases with one count of sexual battery upon a person less than 12 years of age, and one count of lewd, lascivious or indecent act in each case. Both cases were scored on the same scoresheet. Pursuant to a plea agreement the appellant pled guilty to two charges of lewd, lascivious or indecent acts and received 15 years of incarceration on one case and five years of probation on the other case to be served consecutively. After completing his 15-year sentence, the appellant violated his probation and was sentenced to five years of incarceration.

Under Tripp v. State, 622 So.2d 941, 942 (Fla. 1993), separate crimes and sentences may constitute a split sentence where both crimes were scored on a single scoresheet, and considered in forming a scoresheet sentence. Under these circumstances, the Florida Supreme Court has "[held] that if a trial court imposes a term of probation on one offense consecutive to a sentence of incarceration on another offense, credit for time served on the first offense must be awarded on the sentence imposed after revocation of probation on the second offense." Id. Although crediting the appellant with time served may have the effect of erasing the subsequent sentence for the probation violation because the subsequent sentence is less than the original incarcerative period, this result is mandated by Tripp.

Since the appellant received a split sentence for two cases which were scored on a single scoresheet, he should have received credit for time served after resentencing for his violation of probation, and is therefore entitled to immediate release.

REVERSED and REMANDED.

BOOTH, BROWNING and POLSTON, JJ., CONCUR.

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