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Hernandez v. State12/10/2004
Epifanio Hernandez pleaded guilty to DUI manslaughter (count I) and DUI serious bodily injury (count II) in 1990. Now, fourteen years later, he has served time in prison on count I and on probation for both counts. The State has also charged him with violating his probation numerous times. In 1994 the court revoked probation and sentenced Hernandez to additional probation. Most recently, in 2003, the State charged Hernandez with violating his probation for driving under the influence of alcohol. The trial court revoked his probation and sentenced him to imprisonment on both counts. Because Hernandez's probationary term on count II had already expired, we must reverse the trial court's 2003 revocation and sentence on count II. However, we affirm the trial court's revocation and sentence on count I.
As to count I, Hernandez incorrectly argues that his 1994 sentence to ten years' probation expired in 2002. His argument is based on the flawed premise that his 1994 sentence on count I was illegal because it exceeded the statutory maximum. As to count II, Hernandez correctly argues that his 1994 sentence to concurrent five years' probation expired in 1999. To address Hernandez's arguments, it is necessary to examine his original sentences in 1990 and subsequent sentences in 1994 and 2003.
In 1990, Hernandez was sentenced to a probationary split sentence of seven years' imprisonment with credit for time served followed by eight years' probation on count I. On count II, he was ordered to serve two years' probation consecutive to the eight years' probation on count I. By 1994, Hernandez had been released from prison and was serving the probation portion of his sentence on count I. The consecutive probation sentence on count II had not yet begun. On February 23, 1994, the court revoked probation and sentenced Hernandez to ten years' probation on count I and five years' probation on count II, to run concurrently. Inarguably, these sentences were lawful because the court could have imposed any sentence it might have originally imposed including straight probation, a period of incarceration, or another probationary split sentence. See Gibson v. Fla. Dep't of Corr., 29 Fla. L. Weekly S626, S627 (Fla. Oct. 21, 2004) (citing Poore v. State, 531 So. 2d 161, 164 (Fla. 1988)). The court here opted to impose a straight probation sentence. Therefore, Hernandez would be entitled to credit for both prison/jail time served and time served on probation if necessary to insure that the total term of probation did not exceed the statutory maximum for that offense. See State v. Summers, 642 So. 2d 742 (Fla. 1994); Storey v. State, 684 So. 2d 888, 890 (Fla. 2d DCA 1996). The statutory maximum for count I, a second-degree felony, was fifteen years' imprisonment. §§ 316.193, 775.082(3)(c), Fla. Stat. (1990). Hernandez was initially sentenced on April 2, 1990, and awarded seventy-four days of jail credit. He served time in prison sometime between April 2, 1990, and February 23, 1994, when he was convicted of violating probation. It is mathematically impossible for Hernandez to have served more than five years of combined prison or jail, and probation between April 1990 and February 1994. Ten years' probation added to less than five years previously served is less than fifteen years. Therefore, the court was not required to give Hernandez credit for any time served on count I because the new probationary sentence added to the time he already served in prison or jail or on probation did not exceed the statutory maximum. See Summers, 642 So. 2d 742; Storey, 684 So. 2d at 890. As to count II, the statutory maximum was five years. §§ 316.193, 775.082(3)(d). The trial court's sentence of five years' probation did not exceed the statuto
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