 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Hernandez v. State12/10/2004
ry maximum because Hernandez had not served any time in prison or jail or on probation on count II. Hernandez's sentences in 1994 were not illegal. The ten-year probation term on count I was set to expire on February 22, 2004. The concurrent five-year probation term on count II was set to expire on February 22, 1999.
With those expiration dates in mind, we can now determine whether the court had jurisdiction to revoke probation in 2003. In 2003, Hernandez was still serving the 1994 sentence of ten years' probation on count I, which was not set to expire until 2004. However, on count II, he had already completed the concurrent sentence of five years' probation in 1999. Once a probation term has expired, the court is "divested of all jurisdiction over the person of the probationer unless in the meantime the processes of the court have been set in motion for revocation." Slingbaum v. State, 751 So. 2d 89, 89 (Fla. 2d DCA 1999) (quoting State v. Hall, 641 So. 2d 403, 404 (Fla. 1994)). The State did not set "the processes of the court" in motion until March 11, 2003, when it filed an arrest warrant and an affidavit of violation of probation for Hernandez. Because the probation term had expired on count II, the court did not have jurisdiction to revoke probation and sentence Hernandez to five years' imprisonment on count II.
On the other hand, the court retained jurisdiction over count I, the DUI manslaughter offense, until February 22, 2004. The court sentenced Hernandez to fifteen years' imprisonment with credit for time served, including 378 days' jail time. "Credit for time served" here refers to all time previously spent in prison and in jail only because time served on probation may not be applied to a postrevocation sentence of incarceration. See Young v. State, 697 So. 2d 75, 76-77 (Fla. 1997) (citing Summers, 642 So. 2d at 744, and State v. Roundtree, 644 So. 2d 1358, 1359 (Fla. 1994)); Gardner v. State, 656 So. 2d 933, 939 (Fla. 1st DCA 1995). Because the trial court credited Hernandez with time served in prison and jail, his sentence of fifteen years' imprisonment did not exceed the fifteen-year statutory maximum. Gardner, 656 So. 2d at 939. Therefore, we reverse only the trial court's revocation of probation and sentence entered for count II.
Affirmed in part; reversed in part.
FULMER and SILBERMAN, JJ., Concur.
Page 1 2 Florida DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|